Legal Theory Blog

All the theory that fits!


This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.

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Friday, April 30, 2004
Entry Level Hiring (Update #27, Last Updated on May 3) Information on entry level hiring still continues to come in. So far 61 law schools have reported. Email me at if you'd like to add to the list or if you have a correction. My thanks to everyone who has generously shared information with me so far.
Here is are some interesting numbers:
    JD Institution Yale leads with 18, Harvard has 17 and Stanford (10) is close behind. Chicago has 6. Columbia, Michigan, Penn, Georgetown, Berkeley, and Virginia have 4 each. Texas is next with 3.
      Arizona-1 Australian National University-1 Boston College-1 Boston University-1 Columbia-4 Cornell-1 Chicago-6 Fordham-1 George Mason-1 George Washington-1 Georgetown-4 Georgia-1 Harvard-17 Hebrew-2 Howard-1 Kansas-2 Michigan-4 National Law School of India-1 North Carolina-1 Northwestern-1 NYU-1 Penn-4 Stanford-10 U of Arizona-1 UC Berkeley-4 UC Davis-1 UCLA-1 Tel Aviv-2 Texas-3 Toronto-1 Tulane-2 Vanderbilt-1 Virginia-4 William & Mary-1 Wisconsin-1 Yale-18
    PhD Discipline Philosophy leads with five placements, with Political Science (including Government, Political Theory, etc.) just behind with 4 placements. There must be more economics PhDs in the pool, but perhaps the economists realize that it is rational to be a free rider, gleaning the information submitted by others, but not submitting information yourself.
      Economics-1 English-1 History-2 Jurisprudence & Social Policy (Berkeley Program)-1 Middle Eastern Studies-1 Philosophy-5 Political Science-4 Psychology-2
And here are the hires by school in alphabetical order:
      Amanda Frost (JD Harvard)
    Arizona State
      Yariv Brauner (JD Hebrew University & JSD NYU)
      Adam Chodorow (JD Virginia & LLM NYU)
      Linda Demaine (JD Arizona & PhD Psychology Arizona State)
      Aaron Fellmeth (JD Yale)
      Sandeep Gopalan (JD National Law School of India & DPhil Law Oxford)
      Orde Kittrie (JD Michigan)
    Boston College
      Mary-Rose Papandrea (J.D. Chicago)
    California Western
      Michael Yu (JD Columbia & LLM NYU)
      John Hall (JD Stanford & DPhil History Oxford)
      Donald Kochan (JD Cornell)
      Francine Lipman (JD UC Davis & LLM NYU)
      Daniel Hamilton (JD George Washington & Phd History Harvard)
      Michael Scodro (JD Yale Law)
      Carolyn Shapiro (JD Chicago JD)
      Alex Raskolnikov (JD Yale)
      Robert Hockett (JD Kansas & MA Oxford; JSD Yale)
      Bernadette Meyler (JD Stanford & PhD English UC Irvine)
      David Franklin (JD Chicago)
      Jedediah Purdy (J.D. Yale)
      Neil Siegel (JD & PhD Berkeley)
      Kimberly Jenkins (JD Harvard)
      Michael Kang (JD Chicago & PhD Government Harvard)
      Julie Seaman (JD Harvard)
      Robin Lenhardt (JD Harvard)
    Florida State
      Amitai Aviram (JD Tel Aviv & JSD Chicago)
      Curtis Bridgeman (JD & PhD Philosophy Vanderbilt)
      Jonathan Klick (JD & PhD Economics George Mason)
    George Mason
      Michelle Boardman (JD Chicago)
    George Washington
      Steve Charnowitz (J.D. Yale)
      Amanda Tyler (J.D. Harvard)
      John Mikhail (JD Stanford & PhD Philosophy Cornell)
      Ethan Yale (JD Tulane & LLM NYU)
      Hofstra: Michael Siebecker (JD Columbia & PhD Political Theory (expected) Columbia)
    Indiana, Bloomington
      Kevin Collins (JD Stanford)
    Loyola Marymount University
      Robin Kar (JD Yale & PhD Philosophy Michigan)
      Lauren Willis (JD Stanford)
    Loyola University (Chicago)
      Sacha M. Coupet (J.D., University of Pennsylvania; Ph.D., University of Michigan)
      Stephanie M. Stern ( JD Yale)
      Jason J. Czarnezki (J.D. Chicago)
      Scott A. Moss (J.D. Harvard)
    Michigan State
      Adam Candeub (J.D. Penn)
      Noga Morag-Levine (LL.B. Hebrew; Ph.D. Jurisprudence and Social Policy, UC Berkeley)
      Kristin Hickman (JD Northwestern)
      David Stras (JD & MBA Kansas)
      Tonja Jacobi (JD Australian National University & PhD Political Science (Expected) Stanford)
      Jide Nzelibe (JD Yale)
    Notre Dame
      No entry level hire this year.
    Ohio State
      Garry Jenkins (JD Harvard)
    Rutgers, Camden
      Greg Lastowka (JD Virginia)
      John Oberdiek (JD & PhD Philosophy Penn)
    Seton Hall
      Gaia Bernstein (JD Boston University & JSD (expected) NYU)
      Frank Pasquale (JD Yale & MPhil Oxford Politics)
      Paul Horwitz (LL.B. Toronto & LL.M. Columbia)
    St. Louis University
      Fred Bloom (JD Stanford)
      Nicole Porter (JD Michigan)
    Southern Methodist
      Jenia Iontcheva (JD Yale).
      Alison Morantz (JD Yale & PhD Economcis Harvard)
      Christopher Gibson (JD Berkeley)
      Aviva Abramovsky (JD Penn)
      Terry Turnipseed (JD & LLM Georgetown)
      Craig Green
      David Hoffman (JD Harvard)
      Duncan Hollis (JD Boston College)
    Texas Wesleyan
      Neal Newman (JD Howard)
      Aric Short (JD Texas)
    University of California at Berkeley
      Anne Joseph (JD Yale, Ph.D Harvard in Political Economics and Government)
    University of California at Davis
      Michelle Alexander (JD Stanford)
      Jennifer Chacon (JD Yale)
      Carlton Larson (JD Yale)
      Donna Shestowsky (JD Stanford & PhD Psychology Stanford)
    University of California at Los Angeles
      Russell Robinson (JD Harvard)
      Noah Zatz (JD Yale)
    University of Chicago
      Adam Cox (JD Michigan)
      Adam Samaha (JD Harvard)
    University of Cincinnati
      Adam Steinman (JD Yale)
    University of Colorado
      Nestor Davidson (JD Columbia)
      Clare Huntington (JD Columbia)
    University of Connecticut
      Alexandra Lahav (JD Harvard)
    University of Georgia
      Kevin Jon Heller (JD Stanford)
      Erica Hashimoto (J.D. Georgetown)
    University of Kansas
      Elizabeth Weeks (JD Georgia)
    University of Kentucky
      Mark Kightlinger (JD & Ph.D., Philosophy, Yale)
    University of Nevada Las Vegas
      Tuan Samahon (JD Georgetown)
    University of Miami
      Mario L. Barnes (JD Berkeley)
    University of Nebraska
      Richard Moberly (JD Harvard)
    University of North Carolina
      Richard Myers (North Carolina)
    University of Oklahoma
      Mary Sue Backus (JD William and Mary)
    University of San Diego
      Adam Kolber (JD Stanford)
      David Law (JD Harvard & PhD Political Science Stanford)
      Lisa Ramsey (JD UCLA)
    University of South Carolina
      Josie Brown (JD Harvard)
      Josh Eagle (JD Georgetown)
      Joel Samuels (JD Michigan)
    University of Tennessee
      Jeffrey Hirsch (JD NYU)
    University of Texas
      Oren Bracha (JD Tel Aviv & SJD Harvard)
    University of Washington
      Kristin Stilt (JD Texas & PhD Middle Eastern Studies Harvard)
      Tiffany Graham (JD Virginia)
    Wake Forest
      No entry level hire this year.
    Washington & Lee
      Montre Underwood (JD Tulane)
      Melissa Waters (JD Yale)
    Western New England
      William Childs (JD Texas)
    Widener, Harriburg
      Ben Barros (JD Fordham)
      Michael Dimino (J.D. Harvard)
    William & Mary
      Eric Chason (JD Virginia)
      Nancy Combs (JD Berkeley)
      Erin Ryan (JD Harvard)
    William Mitchell
      Alexandra Klass (JD University of Wisconsin)
      John Radsan (JD Harvard)
This list will be revised, updated, and reposted on an irregular basis!
And JD students are also hired in other disciplines. For example, Wharton Legal Studies reports that they have hired Kevin Werbach (JD Harvard).
Note: This list is for entry-level hires only. I have arbitrarily grouped first degrees in law as JDs, even though many non-US law schools award the LLB as the first law degree. Several readers have asked that I collect data on subject-matter areas, but my judgment is that this data is both too soft to be reliable and too difficult to collect. My thanks to everyone who has contributed information!

Values and Virtues at the University of Dundee I will be in Dundee Scotland this weekend attending the Conference on Values and Virtues at the University of Dundee.
The conference on Values and Virtues: Aristotelianism in Contemporary Ethics begins today at the University of Dundee in Scotland and continues through May 2. Here is the program:
    Friday 30 April 2004
      4 onwards Arrivals, registrations 5-7 Keynote address: Christine Swanton (University of Auckland, NZ) 730 Conference dinner
    Saturday 1 May 2004
      0900-1020 submitted papers 1040-1200 John Skorupski (University of St Andrews) 1300-1420 Theodore Scaltsas (University of Edinburgh) 1430-1550 Paul Russell (University of British Columbia) 1600-1720 submitted papers
    Sunday 2 May 2004
      0900-1020 submitted papers 1040-1200 Sarah Broadie (University of St Andrews) 1300-1420 Antony Duff (University of Stirling) 1430-1550 Adam Morton (University of Oklahoma) 1600-1720 Linda Zagzebski (University of Oklahoma) 1830 Conference ends

Friday Calendar
    At the University of Dundee (today through Sunday), Values and Virtues: Aristotelianism in Contemporary Ethics. See you there!
    At SUNY Buffalo, Jack Schlegel, UB presents Notes Toward a General Theory of Civil Liability and the Escape from the Plaintiff's Lawyer's Nose
    At Oxford's faculty of law, Timothy J. Muris, Chairman US FTC presents Current issues in competition and consumer policy: an international perspective.
    At the University of Texas, the first day of a Conference on Constitutional Concepts.
    At the The Danish Research School in Philosophy History of Ideas and History of Science, a conference entitled Moral and Legal Reasoning.

Conference Announcement: Homeland Security & Civil Liberties
    U.S. Army War College - Penn Law Conference on "Homeland Security and Civil Liberties" Penn Law School Philadelphia, Pennsylvania June 18, 2004 8:30-9:00 Registration and Breakfast 9:00-9:30 Opening Remarks 9:30-10:30 Panel I – Understanding the Threats to Security and to Civil Liberties Daniel Sutherland, Office of Civil Liberties, Department of Homeland Security David Rudovsky, Penn Law Eyal Benvenisti, Tel Aviv University 10:45-12:00 Panel II – Innovations in Immigration Policy and Criminal Procedure Jan Ting, Temple Law School David Cole, Georgetown University Law Center Frank Dunham, Federal Public Defender, Attorney for Yaser Hamdi and Zacarias Moussaoui Marwan Kreidie, Director, Philadelphia Arab American Development Corporation 12:00-1:00 Lunch 1:15-2:30 Panel III – Privacy and the War on Terror Marion "Spike" Bowman, FBI Marc Rotenberg, Electronic Privacy Information Network Peter Swire, Ohio State 2:45-4:00 Panel IV – Implications for First Amendment Rights Colonel Kenneth Lassus, Fort Sam Houston Frederick Schauer, JFK School of Government, Harvard University Seth Kreimer, Penn Law 4:15-5:30 Panel V – Reconfiguring Presidential and Judicial Power Colonel Tom McShane, U.S. Army War College Ruth Wedgwood, Yale Law School John Yoo, Boalt Hall School of Law Kim Lane Scheppele, Penn Law 6:00 Dinner -- Nathaniel Persily Assistant Professor University of Pennsylvania Law School 3400 Chestnut Street Philadelphia, PA 19104 (o) 215-898-0167 (f) 215-573-2025

Call for Papers: New Journal ethic@
    ethic@: An International Journal for Moral Philosophy Publisher: Núcleo de Ética e Filosofia Política - Federal University of Santa Catarina ethic@ aims at publishing top quality and cutting edge papers (articles, reviews, interviews, etc.) in the field of modern and contemporary moral philosophy. Published twice a year (June and December), the journal will be available without charge on the following address: Later, the journal will also be published in the traditional format or in CD ROM for personal use or research in libraries. ethic@ has no ideological orientation and publishes papers from any tradition or area of philosophical investigation that fulfills the requirements of scientific excellence. The papers may be on meta-ethics, normative or applied ethics. In the latter case, the discussion should be carried out from a philosophical point of view. The journal will publish papers in Portuguese, English, German, French, Italian and Spanish. ISSN: 1677-2954 ethic@ - Revista Internacional de Filosofia da Moral Núcleo de Ética e Filosofia Política - Dep. Filosofia Universidade Federal de Santa Catarina Caixa Postal 476 88010-970 - Florianópolis – SC - Brasil Email: Current Issue: Vol. 2 Num 2 (Dez 2003) Date: 19 April 2004

Thursday, April 29, 2004
Classroom Technology Department The New York Times has a very interesting story discussing interactive classroom technology & Paul Caron of TaxProf Blog. Paul uses a device that permits students to take in-class quizzes. Here's an excerpt from the story:
    Professor Caron of the University of Cincinnati, who uses the clickers in his tax and estate law courses, agreed that the devices could boost attendance. "The reason attendance hovers near 100 percent in my classes is because students know if they miss class they do not get credit for answering the questions correctly that day," he said. In the pre-clicker past, he said, many students were embarrassed to speak out in class, especially if it meant admitting they did not understand something. "They were petrified of looking dumb in the eyes of their classmates," he said. Using the clickers, Professor Caron can keep better track of a student's performance and embrace the Socratic method by engaging all the students in his law class at once, not one at a time. Professor Caron has become something of a hero among his students. "I won the teacher-of-the-year award," he said, "and it had to be the technology, because I'm not that good. I've been teaching 13 years and never won it, then I'm using this thing and I'm Mister Popularity."
And here is the abstract from a forthcoming Journal of Legal Education article by Paul and Rafael Gely:
    Law schools (and indeed all of higher education) have witnessed an explosive growth in the use of technology in the classroom. Many law professors now deploy a wide array of technological bells and whistles, including PowerPoint slides, web-based course platforms, in-class Internet access, and the like. Students, in turn, increasingly come to class armed with laptop computers to harvest the fruits of the classroom experience. Yet in recent years there has been somewhat of a backlash, with various law professors arguing that this technology is interfering with, rather than improving, pedagogy in the classroom. According to the critics, this technology increases student passivity and thus interferes with the active learning that should be the hallmark of a law school classroom. In addition, the critics complain that laptops provide too much competition for the students' attention, enticing them to play computer games or DVDs and, with in-class Internet access, to read and send email (or instant messages), shop on-line, or check out the latest political, financial, or sports news. This Article opens a new chapter in this debate, explaining how law professors can use both old and new technologies to increase student engagement in the classroom. We first lay out the pedagogical case for creating an active learning environment in the law school classroom and then examine the critics' charge that technology impedes these goals. The Article offers a competing vision of how technology can be harnessed to increase active student learning and, in the process, empower students to resist their laptop's siren song. In particular, we describe how in our tax and labor law courses we combine both old (substituting word processing text for PowerPoint slides) and new (using handheld wireless transmitters) technologies to inject more active learning into the classroom.
For more and details on getting an electronic version of the JLE article, check out this TaxProf Blog post.

Thursday Calendar

Legal Theory Jobs Australian National University has an opening in Legal Theory. Here is the announcement.

Muñoz on Madisonian Religious Liberty Vincent Phillip Muñoz (North Carolina State University - Department of Political Science & Public Administration) has posted James Madison's Principle of Religious Liberty (American Political Science Review, Vol. 97, No. 1, pp. 17-32, February 2003) on SSRN. Here is the abstract:
    Although James Madison has been invoked by justices and judicial scholars for over one hundred years, Madison's principle of religious liberty has never been fully grasped or adopted by the Supreme Court. Judges and scholars have failed to understand Madison's radical but simple teaching that religion is not part of the social compact and, therefore, that the state may not take religion within its cognizance. This is most unfortunate because Madison offers a doctrine capable of unifying the Constitution's two religion clauses into one straightforward rule. His principle addresses the legitimate criticisms of conservative and liberal advocates who have argued, respectively, that the Supreme Court has been unnecessarily hostile toward and favorable toward religion. Madison thus speaks to the contemporary disillusionment with the Court's religion jurisprudence. A proper interpretation of his thought offers a timely and timeless understanding of the principle of religious freedom.

Wallace on the Publicity of Reasons R. Jay Wallace has posted The Publicity of Reasons. Here is a bit:
    It has recently been suggested that there can be no such thing as a private reason for action. Normative reasons are by their nature public; their normative force, in other words, extends across different agents. Thus if considerations C provide me with reason to do x, then they equally provide other people with corresponding reasons for action.
    This is an intriguing thesis, which I have come to think is probably both correct and important.

Call for Papers: BSET 2005
    CALL FOR PAPERS The BRITISH SOCIETY for ETHICAL THEORY 2005 CONFERENCE University of Leeds, UK 11-13 July 2005 Invited Speakers: John Skorupski (University of St.Andrews) TBA Papers are invited for the annual conference of the British Society for Ethical Theory, to be held at the University of Leeds. The subject area is open within metaethics and normative ethics. Papers on topics in applied ethics or the history of ethics may also be considered provided they are also of wider theoretical interest. Papers, which should be unpublished at the time of submission, should be in English, no longer than 6500 words, readable in at most 45 minutes and in a form suitable for blind review. Please send an abstract and two copies of the paper, and supply your full name, address (electronic as well as postal if possible) and academic affiliation on a separate sheet. Those who submitted papers for our previous conferences - successfully or otherwise - are welcome to submit again (though not of course the same papers!). Please tell us if you are a postgraduate student: submissions from postgraduates are encouraged as our aim is that some such should be represented at the conference. Selected conference papers will be published in the journal "Ethical Theory and Moral Practice". Please make clear in any covering letter whether you want your paper considered for publication here as well as for the conference programme. The deadline for submissions is 10th December, 2004. Papers should be received by this date - i.e. it is NOT a postmark deadline. Papers and accompanying particulars should be sent to: Dr. Nafsika Athanassoulis, School of Philosophy, M. Sadler Building, University of Leeds, Leeds LS2 9JT or e-mailed to: Further particulars regarding registration will be available in due course from Dr. Nafsika Athanassoulis (see above), to whom any inquiries should be addressed. BSET homepage:

Conference Announcement: Feminist Philosophy in the Analytic Tradition
    Reminder: Registration fees go up on May 15, 2004. Feminist Philosophy in the Analytic Tradition June 4-6, 2004 A conference organized by the Society for Analytic Feminism and the Department of Philosophy at The University of Western Ontario Registration fees: faculty (by May 15) $50, students (by May 15) $25. After May 15 fees go up to $75 and $50. Registration forms are on the web at Rooms have been set aside for conference participants at Essex Hall, a dorm on campus, $44 a night incl. breakfast, and at the Station Park Hotel, in downtown London, conference rate of $119 a night, (1-800-561-4574). Please make your own reservations well in advance of the conference. Graduate students requiring billeting can e-mail conference organizers for assistance, PROGRAM Friday, June 4 Registration noon until 2 pm in the Philosophy Common Room, Room 313, Talbot College (TC). 2 pm TC 340 Christine Freeman Roth University of Waterloo "Anticipating Feminist Objections to a Moral Contract" TC 310 Alex Barber The Open University "From folk explanations to structural explanations: a critical reconstruction" TC 305 Ingra Schellenberg University of North Carolina at Chapel Hill "The Feminine Face of Sadness" 3 pm TC 341 Louise Antony & Rebecca Hanrahan The Ohio State University & Whitman College "Toward a Feminist Theory of Authority" Coffee & snacks/registration TC 313 4:30 pm TC 340 Jean Harvey The University of Guelph "Gratitude: What's the Story?" TC 310 Sara Ferguson Cornell University "Racism, white privilege, and 'the best of intentions'." TC 305 Sherisse Webb Wilfrid Laurier University "A Feminist Critique of Feminist Contractarianism" 5:30 pm TC 341 Claudia Card University of Wisconsin-Madison "Torture in Ordinary Circumstances". Barbecue/potluck dinner at 141 Duchess Avenue, London, Ontario. We'll provide veggie burgers, locals can bring a salad or a dessert, out of town visitors can either just bring themselves or themselves plus something to drink. Saturday, June 5 8-9 am Registration and coffee/juice in TC 313, Philosophy Common Room 9 am TC 341 Diana Tietjens Meyers University of Connecticut "Who Acts? Reflections on Identity, Selfhood, and Autonomous Agents" 10 am TC 340 Macalester Bell University of North Carolina at Chapel Hill "Contempt as a Response to Sexist Oppression and Oppressors" TC 310 Peg O'Connor Gustavus Adolphus College "Feminist Wittgensteinian Meta-ethics? Revising the Big Book" TC 305 Rebecca Whisnant University of Dayton "Against Unifying Love" 11 am TC 341 Marilyn Friedman Washington University at St. Louis "Women and the Claims of Culture" LUNCH AT GRAD CLUB 1:30 pm TC 341 Susan Babbitt Queen's University "Reasons, Explanation, and Meaningful Choice" 2:30 pm TC 340 Sylvia Burrow Mary Immaculate College, University of Limerick "The Political Structure of Emotion" TC 310 Roksana Alavi University of Kansas "Female Genital Mutilation and Cosmetic Surgery" TC 305 Carol Hay The Ohio State University "On Sexual Harassment: Women's Obligations to Resist Oppression" COFFEE 4:00pm TC 341 Ann Cudd University of Kansas "Missionary Positions" 5:00 pm TC 341 Lynn Hankinson-Nelson, University of Washington "Impure Thoughts: Reflections on The Contamination Thesis" BANQUET AT MICHAEL'S Sunday, June 6 10 am TC 341 Sally Haslanger MIT "What Are We Talking About? The Semantics and Politics of 'Race' and 'Gender'" 11 am TC 341 Robin Dillon Lehigh University "A Feminist View of Arrogance" 12 pm TC 341 Julia Driver Dartmouth College "Trust and Feminist Ethics" LUNCH 2:30 TC 340 Cate Hundleby The University of Windsor "The Value of Oppositional Secrecy" TC310 Anita Superson University of Kentucky "Deformed Desires and Informed Desire Tests" TC 305 Tamela Ice University of Kansas "Simone de Beauvoir's Challenge to Cultural Feminism and Post-Structuralism" 3:30 T1 341 Ann Levey University of Calgary "Liberalism, Adaptive Preferences, and Sexual Equality"

Call for Papers: Race, Ethnicity, Racism
    Call for Papers "Race, Ethnicity, Racism" Inaugural Annual Conference California Roundtable for the Philosophy of Race University of San Francisco (USA) 24.-25.9.2004 The California Roundtable for the Philosophy of Race announces its inaugural annual conference, to be held September 24-25, 2004, at the University of San Francisco. The purpose of the roundtable is to bring together philosophers of race, and those working in related fields, in California, and throughout the nation, in a small and congenial setting to share their work and to help further this sub-discipline. Keynote Speakers: 9/24: Tommy Lott (San Jose State University) 9/25: Gregory Velazco y Trianosky (CSUN, Northridge) Papers are invited on any philosophical issue regarding race, ethnicity, or racism, and including those that take up race in the context of another topic, such as justice, racism, identity, ethnicity, mestizaje (mixed race), feminism, biology, phenomenology, existentialism, psychoanalysis, metaphysics, or epistemology. Registration is free but please register by email by June 1, 2004. Papers should be no more than 30 minutes in length. Please email your paper as a pdf document, together with an abstract of no more than 150 words, to Or send two copies of your paper and abstract to: Ronald Sundstrom, Philosophy Department, USF, 2130 Fulton St., San Francisco, CA 94117-1080 Submission Deadline is June 1, 2004. The California Roundtable for the Philosophy of Race is sponsored by the USF and CSUN philosophy departments.

Conference Announcement: Public Trust and Private Interest

Wednesday, April 28, 2004
Blogging from Oxford 2: Danny Priel at the Jurisprudence Discussion Group
    Introduction The central question of jurisprudence since Bentham has been whether legal positivism offers the best account of the nature of law. One side of that debate is the dispute between natural lawyers and legal positivists, but in the twentieth century, the main action was mostly within legal positivism, and Hans Kelsen and H.L.A. Hart setting the terms of the debate, with Joseph Raz playing an important role in refining and articulating the case for a strong version of legal positivism. The most recent manifestation of the debate within legal positivism has been the debate between exclusive (hard) and inclusive (soft) legal positivists, with contributions from Raz, Jules Coleman, Brian Leiter, Scott Shaprio, Andrei Marmour, W.J. Waluchow, Matthew H. Kramer, Kenneth Einar Himma, and others. Inclusivists believe that law can but need not incorporate moral norms, whereas exclusivists contend that law cannot incorporate moral norms. (If the lines are drawn in this way, then one might define natural lawyers as those who argue that law must incorporate moral norms.)
    As I am composing this post, I’m in Oxford at the Danson room in Trinity College. It is 8:00 p.m. on Tuesday, rather late for an event to begin in my opinion! Our speaker is Danny Priel (D.Phil. Candidate Oxford) and his topic is Farewell to the Exclusive-Inclusve Debate. The JDG papers are usually posted online and Priel’s paper is quite interesting: you can download it here. Indeed, Priel’s paper was so provocative, that I seem to have developed a renewed interest in the debate between inclusive and exclusive legal positivists—a result that Priel may consider perverse.
    Inclusive and Exclusive Legal Positivism Priel begins with some introductory remarks, noting the fact that even in Oxford, the debate between inclusive and exclusive legal positivism is considered to be “boring.” He then gets down to the paper. His paper begins with an elegant and concise summary of the principle positions in the inclusive-exclusive debate:
      [O]n one side stand the inclusive (or soft) positivists who argue that there is no conceptual limit to the law’s “incorporation” of moral standards into specific legal standards or into the rule of recognition. On the other hand, exclusive (or hard) positivists believe that such a conceptual barrier exists.
    The term conceptual is important. The inclusive-exclusive debate is fought out based on the assumption that what is at stake is the concept of law. Those who believe that the debate between and among various versions of natural law and legal positivism is a normative dispute belong to an entirely different line of development in contemporary legal philosophy.
    Raz’s Argument for Exclusive Legal Positivism Priel provides a very nice summary of Raz’s argument, which is worth quoting:
      (1) Law either is an authority or is (wrongly) taken by those subject to it as an authority. (2) For something to be an authority or be considered an authority it must claim authority. (3) Anything that claims authority must purport to replace the reasons for action those subject to the authority have with other reasons. Thus authoritative reasons are reasons not to act on certain reasons (i.e., they are exclusionary reasons) coupled with new reasons for action. (4) Since law claims authority it must purport to provide exclusionary reasons (from (2) and (3)). (5) When law incorporates morality, the law does not provide exclusionary reasons for action, because it does not replace the first-order moral reasons that apply to an agent, only tells the agent to act on the first-order reasons the agent should act on anyway. (6) Therefore when law incorporates morality, law does not (in those instances) claim authority (from (3) and (5)). (7) But (6) contradicts (4). (8) Since (4) (and (1)-(3) from which it derives) are conceptual truths about law they cannot be dropped. So to resolve the contradiction we drop (5). From which we conclude: (9) It is never the case that law incorporates morality (from (8)).
    And why should one heed the law’s authority? Or put differently, why should one treat the law’s reasons for action as exclusionary? Priel summarizes Raz’s answer to that question as follows:
      [A] person[’s] ha[ving] [justified] authority over another involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly.
    Exclusivism holds that in order for law to claim authority, it must provide reasons that preempt first-order reasons for actions, including moral reasons.
    The Case for Inclusivism Priel also provides a less crystalline but nonetheless nifty summary of the case for inclusivism, identifying three lines of argument. What follows is a truncated version:
    • [First,] [s]ome commentators rejected Raz’s account of authority in general, for instance by rejecting his thesis about exclusionary reasons, which is a fundamental plank for his explanation of authority. . . . [I]t is a mistake to think of legal norms as exclusionary reasons, instead they are better understood as very strong (yet defeasible) reasons.
    • A second option is to argue that even if Raz’s account of authority is perhaps correct of some institutions, it is mistaken as an explanation of the authority of law. [Matthew Kramer argues that] a legal system claims authority, but that contrary to Raz’s view (or the view [Kramer] ascribes to [Raz]) it need not claim moral authority.
    • A third approach accepts Raz’s account of authority, accepts also its relevance to the understanding of law, but denies that ELP follows from it. . . . [Jules Coleman argues that] Raz’s argument for ELP imposes an epistemic constraint requiring that we be able to know that a certain norm is a legal norm without recourse to morality. But the argument for ELP does not impose a metaphysical constraint on what a legal norm is. Therefore, Raz’s theory of authority is not a problem for ILP so long as it is possible (and Coleman thinks it is possible) to have a legal system in which everyone can know the law without recourse to the moral considerations while at the same time moral standards are incorporated into the law.
    And that concludes the setup. On to the meat of the paper.
    Priel’s Argument Priel’s claim is that the debate between inclusivists and exclusivists is based on a false assumption:
      I think both sides to the debate share one false assumption, and therefore their views, whatever their merit otherwise is, are wrong about the question of the possibility of incorporation of morality into the law. The false assumption is the belief that when laws contain words like “justice,” “equality,” “fairness” etc. (I will call these words henceforth “moral words”), these words refer to the moral concepts JUSTICE, EQUALITY, FAIRNESS etc.
    Priel then shows that participants in the inclusive-exclusive debate (particularly Raz) hold this assumption. And what is the correct assumption:
      [M]y view is that in all (or almost all) instances in which moral words are mentioned in the law, the reference is to a legal concept, which normally bears a close relationship to the moral concept (or more accurately, to the moral concept as understood at the time of interpretation) but is logically independent of it.
    Priel then makes a move the significance of which is not entirely clear to me. Here’s the passage that I find puzzling:
      I think there are good reasons for thinking that the view that we [can] discover or know the “best” or “correct” morality is mistaken. Even if there is such correct morality (and I doubt that), the possibility of us ever getting to know that correct morality seems to me unlikely. My argument will begin on the more modest assumption that seems to me well supported by the history of ethical thought, both popular and professional, that currently we do not know what the correct morality is, even if such morality actually exists.
    Why am I puzzled? First, I’m not quite sure what Priel means when he says that he doubts there is a correct morality. Is he relativist? A moral skeptic? Second, I find his assertion that “we do not know what the correct morality is.” Surely, we are quite confident about the truth of many moral propositions. Perhaps, Priel means that we don’t know what the best theory of morality will ultimately turn out to be. Suppose that is the case, and further suppose that as a result some difficult moral cases hinge on disputed issues about which moral theory is the correct or best theory. Nonetheless, it could still be the case that some moral cases are easy, and that for those cases, we do know what morality requires. For example, we may not know whether the death penalty is cruel, but nonetheless be quite certain that thumbscrews are cruel.
    Here is a slightly different version of my worry. Priel claims we don’t know what the “correct morality” is, but this claim is most plausible as applied to thin moral concepts (e.g. “right,” “good,” and “just,” but dubious in the context of thick moral concepts, such as “cruel” or “kind.” When it comes to thin moral concepts such as “justice,” there is a good deal of disagreement both among theorists and ordinary folk. But with respect to thick moral concepts, there is substantial more agreement, and especially strong agreement on the core or paradigm cases. Thus, we know that torture is cruel. Moreover, there are relatively fixed criteria for the application of many of the thick moral concepts. For an action to be cruel, it must inflict needless suffering. Of course, there may be borderline cases of cruelty, but many nonmoral concepts have borderline cases.

    An Example: The Death Penalty in 1850 Priel then provides an example. Suppose we were to discover that the best theory of morality holds that the death penalty is “cruel and unusual punishment.” Nonetheless, Priel maintains, we are likely to believe that a judge who upheld the death penalty in 1850 made a decision that is legally correct. And of course, if a trial judge were to have done otherwise in 1850, he would undoubtedly have been reversed on appeal.
    What is Priel’s positive account of such more terms like “cruel”:
      So what do words like “equality” or “fairness” refer to when they are mentioned in the law? I believe my argument above shows that it is more accurate to think that in such cases the law refers to what I called legal concepts, and judges are required to decide cases according to these concepts’ legal meaning. What are these legal concepts? It is very likely that the correct moral concepts are related to the legal concepts denoted by the same word, but it is important to see that even if some correct morality exists, unless we know what that correct morality is, it is not the correct morality that influenced the content of moral words but rather the common understandings of moral words in different societies. Since these change over time, if there is a correct morality that never changes, we can be sure that social understanding of morality often differs from the correct morality.
    At this point, Priel seems to suggest that the meaning of apparently moral concepts like “cruel and unusual” or “equality” is fixed by the moral norms of a particular community, but Priel then denies that this is so:
      There is also a strong link between commonly held meanings given to moral words in a certain society and the legal meaning given to those words: judges after all are part of society, and their training and selection procedures usually guarantee that those who are elected for the judiciary do not hold views that are grossly at odds with those of much of their society. However, it would also be a mistake to think that the meaning of moral words is identical to the social understandings of moral concepts. There are many historical examples of cases in which the majority of people in a certain state thought the judiciary is mistaken in its understanding of certain moral words, which are part of that state’s laws. To some extent legal discourse is conducted independently of other political discourses: when a lawyer is asked what constitutes “cruel and unusual punishment” in American law, she would turn for the answer to a law book; the meaning of those words in the law will often have a some peculiarities true only of the law.
    What Priel says is correct, but it worries me just a bit. The question is not just whether courts sometimes depart from the moral norms of the community, but whether this deviation would be viewed as a mistake or not. What Priel needs to make out his argument is the claim that there are historical examples of cases in which the majority of people in a certain state thought the judiciary was mistake in its understanding of certain moral words that were part of the state’s law, but nonetheless the judiciary was legally correct in holding the deviant understanding.
    Objections I won’t summarize the remainder of Priel’s paper, which dealt with a variety of potential objections to his position, including, for example, the possibility that moral norms might be included in the rule of recognition. In the question and answer period, I asked Priel about the two worries expressed above. What, for example, would Priel say about a variant on his 1850 death penalty case. Suppose that it is 1850 and a court of last resort decides a case involving a very unpopular criminal defendant who is sentenced to a punishment that would fall under the thick moral concept of cruel, for example, torture. The court is swayed by the pervasive anger at the defendant and upholds the sentence. Critics of the decision might say, “That decision was legally incorrect. The Constitution forbids actions that are properly classified as coming under the thick moral description “cruel. Torture is cruel. So this decision was wrong.”
    Replying to the question, Priel first noted that he could accept the point that trial judges are bound by precedent and simply alter his example so that it involved a court of last resort. This move is entirely fair, I think. He then noted that that the distinction between thick and thin moral concepts posed a more serious challenge to his position. Priel noted that his position assumes moral realism—a view that Priel believes is held in common by the participants in the inclusive-exclusive debate. [I believe that I’ve gotten this right, but I am not quite sure how wide in scope Priel’s attribution was meant to be.] Given moral realism, it can, in principle, turn out that everyone is wrong about a moral question, e.g. the question whether a given punishment is cruel But positivists, Priel argues, are committed to the view that in some important sense, when the whole legal culture believes that a punishment is not cruel, then it is not legally cruel.
    But one needs to be very precise here. No one needs to dispute the claim that when a court of last resort decides a case and that decision becomes final, then the decision is legally binding. And that has consequences. For example, the decision will bind the parties to the dispute and the precedent that is set will bind lower courts in a common law system. But none of that is inconsistent with the assertion that the decision made by the court of last resort was nonetheless mistaken as a matter of law. And if the basis for the mistake was that the court misapplied the thick moral concept of cruelty, then it would seem that the decision was incorrect because the court misapplied a moral standard.
    Of course, this argument may fail for the reasons Raz identifies, but Priel may not avail himself of this move, since it is his claim that Raz is mistaken to believe that terms like cruel are truly moral terms. Priel needs to argue that “cruel” as used in a constitutional provision that forbids “cruel punishments” is not a moral concept at all, but is instead a legal concept, for which the criteria that determine correct application are internal to the law and fixed by the conventions of legal practice. Priel's view would seem to lead to the conclusion that the legal meaning of cruel changes in the case where (1) the legal culture says that torture is not cruel in 1850, but (2) then says that this decision was mistaken. This would seem to lead Priel to the awkward conclusion that the later assertion that the 1850 decision was a mistake is itself “mistaken." Despite the legal communities attribution of legal mistake, there was not true mistake at all. Instead, the 1850 decision was correct, but the law changed. The change-in-law interpretation, it strikes me, misses the force of the claim that a court of last resort has made a legal mistake.
    There was also an interesting discussion of the question whether Priel’s argument generalizes to nonmoral concepts such as causation. If the entire legal culture believes at time T1 that X does not cause Y, but we later (time T2) discover that this belief was based on a scientific error, are we tempted to say that as used by courts, “cause-in-fact” is a legal concept and not a scientific concept and that the legal concept of cause changed between T1 and T2? Priel seemed willing to bite this bullet—arguing that the legal concept of cause may indeed be different than the scientific concept. Well, Priel is right about that, the concepts may be different, but that does not entail the conclusion that there was no legal mistake at time T1.
    Many more interesting questions were asked and answered, and I certainly learned from Priel’s paper and the very good discussion that followed.

Blogging from Oxford, Part One: Foot on Morality and Goodness
    Introduction As I was beginning to compose this post, it was 4:30 p.m. GMT on Monday. I was sitting in the fourth row of Examination Room 6 at the University of Oxford. Reverting to the present tense (in which I originally composed), the speaker is Philippa Foot and her topic is "Goodness and Happiness." Foot is at the front of the room, and she looks very well indeed. The most noticeable difference from the image I remember from 20 years ago is a walking stick. The room is full and buzzing with serious talk (and some not so serious talk as well).
    I've been walking all day, and I only got an hour or two of sleep on the red eye from Los Angeles, but I find that I am not the least bit tired. Foot was my teacher twenty some odd years ago, and she is one of my intellectual heroes. So, I am looking forward to this with great anticipation and much fondness.
    Robert M. Adams has just come into the room, another former teacher of mine from UCLA, and a long-time colleague of Foot's. We both remark how glad we are to have made this event.
    Foot Begins After a short introduction, Foot says she doesn't know where to begin. She says she will say a little about where she is coming from. There has been a notorious battle, with R.M. Hare about the boo-hooray theory, which has received a brilliant restatement by Gibbard. Foot rejected the move to the sharp distinction between descriptive and evaluative propositions. She remembers when she rejected Hare's view. It was in a conversation with Elizabeth Anscombe in which she replied to an example that it was a mixture of description and evaluation. "What?," said Anscombe. That was the beginning of Foot's project. It is entirely wrong to contrast fact and value. In Natural Goodness, she tried to give an account of evaluation as a special kind of fact. She was helped in this by an article by Michael Thompson. It is a view that connects good with life in such a way that if there had been nothing alive, good would have had no application. Foot thinks that although good can be used in so many different ways--good roots of tries, good actions, good weather, and so forth--there would be no good without life. In a lifeless universe, there would be no good or bad of any kind.
    That's where I'm coming from, says Foot. Foot parenthetically notes that she is known for changing her views, but that she doesn't think the lecture she gives today involve any changes.
    The Paper So now, Foot begins her actual paper. Today's problem is the problem of the letter writer (introduced momentarily) who is in a tight corner. This problem comes from a marvelous book called "Dying We Live." It is a book of letters written home by anti-Nazis who were condemned to death. They were allowed to write letters home. They are very touching, some long, some short. She quotes a letter from a farm boy from the Sudetenland. He wrote, "Dear Parents, I must give you bad news. I am condemned to death. We would not sign up for the SS. Both of us would rather die than become a member of the SS. I know what they do." This letter writer is in a tight corner.
    Was this a rational choice? On what theory of practical rationality can the rationality of this choice be made out? How can it be rational to do what is totally inimical to one's own good? (Of course, it might not be a tight corner, because the remorse might be so bad that it would be worse to go on living. But one can get rid of this argument, by imagining an amnesia drug. Amnesia, says Foot, is a real phenomenon. There is no amnesia drug now, but I infer that the point of Foot saying that amnesia is a real phemenon is to insist on the legitimacy of her amnesia-drug countermove to the remorse argument.).
    So we have now returned to the main question. Foot now asks whether virtue ethics could help with the problem of the tight corner. Foot notes that she herself is not a virtue ethicist, unlike Rosalind Hursthouse, Michael Slote, and Christine Swanton. She is opposed to virtue ethics, which is now all the rage in moral philosophy. Why?
    Foot's Rejection of Virtue Ethics The idea of virtue ethics seems to be that the primary moral judgments are inner states and actions derive their moral status from these. Of course, when an action is judged morally, intentions must be judged. Foot gives the example of a medal for courage given to a Scotsman who fell off a pier while drunk and as a result saved a drowning man. This medal was wrongly given, she observes. But virtue ethics goes much further than this, as when Christine Swanton says that moral goodness is a matter of fine moral states. Foot briefly argues that this view problematic, noting that when Swanton tries to specify the innter state for justice, Swanton specifies the inner state as "sensitivity to the genuine demands of justice." (My paraphrase of Foot's paraphrase--not a quote from Swanton.) Foot left it there, but I assume she thought the audience would conclude that Swanton's specification of the inner state was circular. Foot then notes that justice is the difficult virtue for virtue ethics to handle. And surely Foot is right about that!
    Inner states (or what the agent feels), says Foot, are often irrelevant. For example, schadenfreude (joy at others pain) is not always entirely bad. Rather than inner states, Foot claims, it generally is the nature of actions that determine what should and should not be done. So, when Anscombe talked about the morality of promises, she didn't talk about inner states but rather discussed the importance of one person binding herself to another. Another example is theft: the wrongfulness of theft is about depriving others of what they need and not about an inner state.
    One reason why Foot says she dislikes virtue ethics is that it seems to forget how much we rely on law, order, and decent behavior. This is one way in which virtue ethics skews our thought. The danger of taking virtues as primary is that it suggests a (false) solution to the problem of the tight corner. It is tempting to think that virtues, being dispositions, manifest one's values and hence can explain why one acts contrary to self interest. It is tempting to suppose that the reference to values solves the problem of acting virtuously in the tight corner.
    Is the point of a virtue that the disposition to act well is something that is present, even in the tight corner? The point being that this would explain why one could act rationally by acting on the basis for the reason provided by the virtue. Foot then asks a question, which undermines this account of the virtue-ethical solution to the tight corner. Her question is: "Wouldn't it be rational to at least try to act contrary to the virtue?" Virtue ethics doesn't have a real solution to the problem of the tight corner. Foot was moving rather quickly here, and I may have missed an element of her argument.
    Are we in trouble? Once again, Foot moves back to the main question. Are we in trouble? That is, do tight corner cases pose a difficulty for our understanding of the relationship between rationality and morality. Foot says that her present thought is that we aren’t in trouble. That is, Foot is claiming that there is no problem to be solved. As Foot puts it, she now thinks that it is not right to think that there is a problem about goodness and happiness. So today's paper, Foot says, is about why we aren't in trouble. The tight corner, where happiness and morality seem to conflict is not truly a problem.
    Warren Quinn and the Priority of Morality and Rationality How did Foot arrive at her new position on this issue? Foot says that her thinking was helped by the work of Warren Quinn. Although I never had a course from Quinn, I spent a good deal of time in his office and I was a witness to his brilliant participation in one of Foot's graduate seminars. Coincidentally, the seminar (held about 15 years ago as I recall was also on the problem of rationality and morality.
    Rationality and Morality Now, Foot summarizes an argument of Quinn's (from Rationality and the Human Good and Putting Rationality in its Place. The structure of Quinn's argument is idiosyncratic. Most philosophers start with a theory of rationality and then move to morality--the idea is that morality must answer to rationality. As I understand Foot, she is making a point about the relative priority of rationality and morality. But Quinn suggests that we should count a theory of rationality as deficient if it would endorse a shameful action. In other words, Quinn is arguing that rationality must answer to morality. That is, Quinn claimed that morality has priority over rationality. Foot notes that Quinn's argument was directed at neo-Humean theories, such as (1) the theory that rationality aims at maximizing desire satisfaction and (2) the theory that rationality aims at the agent's well-being. On either theory, it would be possible for morally disgraceful actions to be recommended as rational. Foot paraphrasing Quinn then asks, “Why, if this were true, would we think rationality is so important?” Or as I might put it a bit differently, “How could rationality have priority if it could lead to the recommendations of disgraceful action?” That is, Foot says, the command does not go from rationality to morality; it goes the other way, from morality to rationality.
    Natural Goodness Foot then moves on to a new stage in her argument. She makes a point about method. Some might suggest that we could start with indubitable facts about actions that are good or bad. That is, our initial premise could be that we know that such and such is wrong. To this proposed way of proceeding, Foot says “No.” We do not need to begin with what I might call bare intuitions about what is good and bad. Why not? Foot explains that in her recent book Natural Goodness, she argued for criteria for goodness and badness. Foot starts with facts about human life, and proceeds to derive the criteria from these facts. As I interpret her, Foot is claiming that her account of natural goodness does not rest, at bottom, on our bare intuitions about clear cases of good and bad.
    If this is roughly right, Foot then asks, “How do things stand between happiness and goodness”? A person's goodness and their good can come apart (as in the tight corner cases). Earlier in her career, Foot tried to give a special conception of happiness to handle this problem, but she abandoned this solution.
    In this paper, Foot is offering an alternative account of the relationship of good and goodness. To illustrate her approach, she suggests that we think about plants and animals. In animals, good and goodness are not closely connected. The good animal (e.g. healthy and strong animal) can act in ways that are not for its own good. Healthy bees sting and die young. Acting the way a bee should act can be bad for the individual bee. Birds that defend their nest sometimes decoy a predator from the nest and are killed. Is it the same with human beings? Foot says, she thinks that it is.
    Happiness as One Virtue Among Many It may seem shocking that the good human would be harmed because of her goodness. But, says Foot, this is not a true problem. Human beings are like those bees. Being a good human does not guarantee that one acts for one's own good. Why then did Foot see the tight corner as a problem? Foot mistakenly believed that one's own good was part of the structure of rationality’as part of the foundation. But now, Foot says, we should look for one's good in the building. One's good is the aim of one of many virtues. Foot now introduces a bit of terminology. "V sub h" is the virtue of one's own happiness. "V sub o" is the virtue of other's happiness.
    Foot then elaborates a bit on “V sub o.” Consider the case where we wish for our children's good. What does this mean? Foot gives the example of a contest with prizes. You will wish your children should earn the prize--there is nothing wrong with having this hope. But one would not wish for one's children to experience the joys of torturing others. Nor would one wish that one's children would experience the pleasures of a perpetual childhood. Insofar as happiness is identified with human good, the idea of it cannot be derived in any simple way from the idea of pleasures.
    A Virtue Directed at Happiness Foot now returns to the idea of “V sub h,” comparing it to other virtues, as in “V sub c” = charity and “V sub j” = justice. Someone who has “V sub h” acts for his own happiness. Foot says this virtue has no name. Elaborating a bit more, she says that “V sub h” is a virtue placed among other virtues. Each virtue's content is defined in part by its relationship to the other virtues. That is, the scope of one virtue determines the scope of the others. One cannot do charity by giving away the money one owes to another. An act of V sub h cannot be an unjust act, because the scope of V sub h is determined in part by justice.
    And on that point, Foot ends her paper, followed by sustained applause.
    A Query About V sub h Foot is extraordinarily careful, so it is always wise to take some time to digest her ideas. I did have a thought or two about what I take to be the new and important idea in the pape “V sub h,” the virtue that is directed at happiness. Initially, I think it is quite interesting to suppose that there is a virtue concept that would seem to play a quite central role in human life, for which there is no name. Our language is rich with vice and virtue words, and it seems rather odd that a central virtue would be missing from our vocabulary.
    This initial thought lead to another. Foot's picture is that V sub h is one virtue among many. That it is one room in the house--to use Foot's metaphor. This picture of the relationship between virtue and happiness is quite different from Aristotle's picture--at least as I understand Aristotle’s view. The Aristotelian picture is that happiness is constituted by a life of faring well and doing well, which means a life lived in reasonably favorable circumstance in which one engages in action that is in accord with the virtues. To return to the metaphor of the house, a happy life would be a life lived in a house with rooms for all the virtues (courage, justice, benevolence, temperance, practical wisdom, and the rest). Happiness, for Aristotle, was not just one room in the house.
    I asked Foot a question designed to get at the difference between her picture and Aristotle’s. “If one had all the other virtues (courage, justice, benevolence, temperance, practical wisdom, and the rest) but lacked V sub h, what would be missing?”
    Foot’s answer began with her astonishment at the question: ?I?m surprised you asked that,? she said with the emphasis on that. At this point, I reverted to my undergraduate self, and thought for a moment, “Why did you ask that question, Solum?” Foot then noted that without happiness, a life would be empty. Consider, for example, a life lived in pursuit of celebrity, Foot suggested. This would be a dreadful life.
    I am sure that I am missing something important, because Foot’s answer did not seem fully responsive to my question. Someone who pursues celebrity, who puts external recognition far too high in the hierarchy of values would not, I think, be a person who does possess the full complement of the virtues. Caring too much for recognition by others is a vice that is distinct from not caring about one’s own happiness. Moreover, a person of practical wisdom would recognize that celebrity would be unsatifying as an end for one’s action--that it would not be a fruitful goal to pursue. Indeed, happiness can be thwarted by any of the particular vices, intemperance, bad temper, cowardice, and the rest.
    What my question was designed to elicit was some account of V sub h, that is, some account of what is distinctive about this virtue. I was trying to get Foot to say more about the content of “V sub h”.
    Foot did address this concern, by referring to the concept of “deep happiness.” Foot did not elaborate on what “deep happiness” is, but given what she did say, it would seem that deep happiness is related to the pursuit of projects that are truly worthwhile or significant. And of course, deep happiness does seem to require that one have a meaningful life plan that involves significant and worthwhile goals.
    There were many good questions, including one from Robert Adams. Finally, the time was up and the session ended. I was very happy to have had the opportunity to hear Foot once again! Philippa Foot remains a marvel to behold and I count myself as lucky to have learned so much from her.

Lund & McGinnis on Lawrence v. Texas I have updated this post to correct a misinterpretation on my part of Lund & McGinnis, and also to suggest that their characterization of Barnett's position (as clarified) is incorrect. Anyone interested in constitutional theory should read this paper! And don't miss Randy Barnett's post on Lund & McGinnis.
    Nelson Lund & John McGinnis have posted Lawrence v. Texas and Judicial Hubris on SSRN. Here is the abstract:
      Lawrence v. Texas produces a desirable policy result, but it deserves condemnation as a legal decision. It repudiates the Supreme Court's most recent attempt to put doctrinal restraints on the most anticonstitutional doctrine in constitutional law - substantive due process. That doctrine, for which the Court has never provided a successful textual justification, has been selectively employed over the decades to advance a variety of political agendas popular with Supreme Court majorities. In 1938, Carolene Products put meaningful restraints on substantive due process, taming that doctrine for about a quarter of a century.. With Griswold and Roe v. Wade, the Court adopted a new substantive due process agenda - sexual freedom. In Washington v. Glucksberg, the Court sought to restore most of the limits of the Carolene Products approach, while leaving the Griswold-Roe line in place, by adopting a test requiring that newly recognized rights be deeply rooted in the nation's history and tradition. Lawrence repudiates the Glucksberg approach and instead deploys an undisciplined form of judicial mysticism. Notwithstanding the availability of plausible arguments based on precedent to invalidate the Texas law, the Lawrence Court chose instead to rely on a series of utterly untenable arguments and analytically empty bombast. We argue that the Lawrence approach is not law in any meaningful sense of the term, but only a vehicle for judges to impose their own political preferences on the nation. We also rebut some justifications that could be offered in defense of Lawrence. We show that Professor Robert Post's concept of a conversation between the Court and the nation obliterates the concept of law as something distinct from politics, and offers a theory of judicial review that would justify even a decision like Plessy v. Ferguson. Second, we show that Professor Randy Barnett fails in his effort to provide Lawrence with a foundation in the Constitution because he misinterprets the Ninth Amendment. Third, we rebut those who would defend Lawrence on pragmatic grounds by explaining why we think competitive federalism is a far superior mechanism for creating new norms of liberty, and for correcting the mistakes that are inevitable in any process of policy development. Finally, we outline the case for repudiating the Griswold-Roe-Lawrence line of cases and for using the Glucksberg test to return the Court's substantive due process jurisprudence roughly to where it stood as a result of Carolene Products.
    And here is the key passage from their reply to Randy Barnett's defense of Lawrence:
      The Ninth Amendment by its terms is a rule of construction rather than a substantive guarantee of rights.130 It simply warns against misinterpreting the Constitution to mean that the enumeration of certain rights might authorize the federal government to infringe other rights. It is thus a reminder that the people retain all their rights against the federal government—including the right to govern themselves as they see fit within their own states—except to the extent that the federal government is authorized to infringe those rights in the exercise of its enumerated powers. We think that the meaning of the Ninth Amendment is perfectly plain on its face, but our understanding of its meaning has now been confirmed with overwhelming historical evidence by Professor Kurt Lash.
    For the Lash paper, surf here.
    I have only begun to think about this issue, but based on a cursory reading, McGinnis & Lund have an incomplete reply to the key element in Barnett's defense of Lawrence as articulated in his book, Restoring the Lost Constitution. Barnett does not claim that the Ninth Amendment creates rights against the states of its own force. As Lund & McGinnis recognize, Barnett's argument rests on the Privileges and Immunities Clause of the 14th Amnendment. Here is the "money" passage from Barnett's paper, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas:
      In addition, federal power is further constrained by the rights retained by the people—both those few that are enumerated and, as affirmed in the Ninth Amendment, those liberty rights that are unenumerated as well. At the state level, the Privileges or Immunities Clause of the Fourteenth Amendment prohibits states such as Texas from infringing the privileges or immunities of its U.S. citizens. These include both the liberty rights or “immunities” retained by the people, and the positive rights or “privileges” created by Constitution of the United States.
    As is clear from both the quoted passage from Barnett's paper on Lawrence and from his book Restoring the Lost Constituion, Barnett claims that state power is limited in two ways. First, Barnett argues that state police power has internal limits--these limits, however, are not federal in nature. Second, Barnett claims that the original meaning of the privileges and immunities clause of the fourteenth amendment constitutionalizes limits on state power. Those are the limits that Barnett relies on in his article on Lawrence. So far as I can tell, Barnett's defense in depth of these positions is not addressed by McGinnis & Lund.
    In a footnote (footnote 129 on pages 43-44 of their paper), McGinnis and Lund contend that Barnett's position is that "the Ninth Amendment applies to state as well as federal laws." They contend that Barnett's position is that the Ninth Amendment is "incorporated" in the Privileges and Immunities clause. I am quite sure that this is not Barnett's position, but perhaps Barnett himself is in a better position to provide the textual evidence. It would be very odd indeed for the Ninth (which of its own force is a rule construction) to be incorporated as an "immunity" in the 14th. What would be much more plausible is that the conception of liberty and legitimate state power that is reflected in the Ninth Amendment is also reflected in the 14th. Let me emphasize that all of this is being done on the fly. A scholarly assessment of Barnett verus Lund & McGinnis would require much more work than I've done for the purposes of this post.
    McGinnis & Lund offer another argument, aimed at Barnett's distinction between liberty (outside the scope of the police power) and license (which may property be prohibited by government):
      The distinction between liberty and license is wholly dependent on an unstated conception of what “the rights of others” are and what it means to infringe them. A list of the “rights of others” certainly cannot be found anywhere in the Constitution, and they are by no means self-evident. Political philosophers have engaged for centuries in sharp and unsettled debates about the appropriate line between liberty and license, and American history contains any number of competing strands of argument on this question. Barnett adopts a view drawn from classical liberalism and contemporary libertarian theory. We are personally sympathetic to that approach, and we are willing to assume that a Supreme Court staffed with nine Randy Barnetts might well produce an intellectually coherent and in many ways salutary set of social policies. But we cannot claim that our policy views are self-evidently embodied in the Constitution, while others, such as President Franklin Roosevelt’s notion of the four freedoms, are self-evidently unconstitutional.127 Indeed, even the classical liberal tradition encompasses sharp debates about what constitutes a harm to third parties that is sufficient to justify curtailing liberty.
    I will stop here. McGinnis and Lund's claims are certainly interesting and provocative! Highly recommended!

Tuesday, April 27, 2004
Gardner on Kutz John Gardner has a review of Christopher Kutz's book Complicity forthcoming in Ethics. You can download it here. And here is a taste:
    An accomplice is someone who commits a wrong that consists in his contributing to someone else’s committing a wrong. Morally as well as legally, accomplices fall into two classes. Some accomplices are co-principals. Suppose that two burglars set about ransacking a house together. As well as being a burglar in his own right, each is an accomplice in the burglary committed by the other, just by virtue of the fact that the two of them are acting together in a joint enterprise. Other accomplices are accessories. Suppose that one burglar ransacks a house, but only after a corrupt postal worker passes him the information that the owners are on vacation. The postal worker is an accomplice in burglary (and in some legal systems can be convicted of burglary) whether or not there was a joint enterprise.
    Although his book is titled Complicity, Christopher Kutz does not compare and contrast these two modes of complicity. Nor does he explore either of them comprehensively. He focuses on one special case of complicity. It is the case in which people commit a wrong together that none of them commits in his or her own right. In such wrongdoing the only principal is a collectivity: a nation, a corporation, a team, a group. And the individuals who make up that collectivity are at most accessories to the collectivity’s wrong. Most of Kutz’s book is about the moral position of the individuals who make up the collectivity. Are they indeed complicit, and if so what follows?

Conference Announcement: The Ethics of Global Warming
    THE CENTRE FOR APPLIED ETHICS Cardiff University HAS PLEASURE IN ANNOUNCING AN INTERDISCIPLINARY DAY-CONFERENCE ON THE ETHICS OF GLOBAL WARMING to be held on Friday 23rd July 2004, 11.00 am to 4.30 pm in the Humanities Building, Cardiff University. Sir John Houghton CBE, FRS Former chair, Royal Commission on Environmental Pollution and former co-chair (UK), Intergovernmental Panel on Climate Change 'The Science of Global Warming' Michael Grubb Associated Director (Policy), the Carbon Trust; Visiting Professor, Imperial College London; Senior Research Associate, Department of Applied Economics, Cambridge University 'Costing Impacts: On Omission and Commission' Donald Brown Director, Pennsylvania Consortium for Interdisciplinary Environmental Policy; Former Program Manager for UN organisations at US Environmental Protection Agency Office of International Environmental Policy, and Author of American Heat: ethical problems with the United States' response to global warming 'The International Ethics of Atmospheric Pollution' Robin Attfield Centre for Applied Ethics, Cardiff University; Author of The Ethics of the Global Environment and Environmental Ethics: An Overview for the Twenty-First Century 'Future Generations: Considering All the Affected Parties' For further information, contact Debbie Evans ( or Ed Dain (, or visit the conference website: Registration fee (including refreshments, lunch and conference pack) ?20 (students ?10). Please circulate this email to anyone who might be interested.

Tuesday Calendar
    At Oxford's Jurisprudence Discussion Group, Danny Priel presents Farewell to the Exclusive-Inclusve Debate. See you there!
    At Cardozo, Jack Balkin will speak on "Plessy, Brown, & Grutter: A Play in Three Acts," at 6:00 p.m. at the Cardozo Law School. Free and open to the public. Reception to follow.
    At the University of Chicago's law and economics series, Jason Johnston, Robert G. Fuller, Jr. Professor of Law and Director, Program on Law and the Environment, University of Pennsylvania Law School, presents Tradeable Pollution Permits and the Regulatory Game.

Monday, April 26, 2004
A Legal Scholar’s Journal, Part Two: Origins
    Introduction This is the second installment of A Legal Scholar’s Journal, an irregular feature of Legal Theory Blog. The idea of the journal is to share my progress on an article, from the blank page (or “screen”) that I had last week through the early drafts of summer to the submission of the final draft to law reviews in February of 2005. The article is about the relationship of This post is about the genesis of the article—its origins in the early days of my own legal and philosophical education. Today is an especially appropriate day to talk about the origins of my current project, because I am . . .
    On the Train to Oxford . . . I am composing this post on the train to Oxford. It just so happens that I had planned to be in the United Kingdom this week, for the conference on virtue ethics at the University of Dundee in Scotland. One of the disadvantages of doing the weekly Legal Theory Calendar is that I know about all the conferences and talks that I’m going to miss—leading to a very high regret quotient. But in this case, I felt quite fortunate, because I was able to plan to arrive in time to hear Philippa Foot, the distinguished moral philosopher, give a lecture entitled Happiness and Morality today. Thinking about Professor Foot (who I thought of as “Mrs. Foot,” no matter how un-PC that might be) takes me back more than twenty years . . .
    Dodd Hall . . . more than twenty years to the Philosophy Department at the University of California at Los Angeles. I still have very distinct memories of Foot’s course in metaethics. Along with Rogers Albritton, Tyler Burge, Thomas Hill, Greg Kavka, and Jean Hampton, Foot had a tremendous formative influence on my intellectual development. At the time, I recall being very attracted to Kantian moral philosophy, but Foot’s outlook on ethical theory must have struck a very deep chord. I still have a very vivid memory of the day that Foot introduced Elizabeth Anscombe’s essay Modern Moral Philosophy, an article that has had a profound influence on the direction of moral philosophy in the past fifty years.
    Anscombe’s article contained an important critique of Kantian and utilitarian approaches to moral philosophy. Of course, the objections that Anscombe made in 1958 are no longer state of the art. Both Kantians and utilitarians have developed clever, even brilliant replies, to her particular objections, but the sophisticated work of Derek Parfit, Samuel Scheffler, Onora O’Neill, Barbara Hermann, and Christine Korsgaard was still far in the future in late 50s and early 60s. Anscombe’s essay ended with the suggestion that moral philosophers look to Aristotle’s moral philosophy as an alternative to what looked like dead ends in the development of consequentialist and deontological moral theory.
    Virtue Ethics And sure enough, Anscombe’s suggestion was taken up, by Peter Geach (her husband), by Philippa Foot, and others. This early work lead to one of the most significant developments in contemporary moral philosophy—the emergence of what has come to be known as “virtue ethics.” (And virtue ethics has gone off in a very different direction than that take by Foot's work.) In the early 1980s, when I studied with Foot, it hadn’t yet become clear that virtue ethics was about to become a phenomenon, with dozens of books, hundreds and hundreds of articles, and conference after conference to follow. So while I was interested in virtue ethics and familiar with the key foundational articles, I found myself attracted to other ideas as I prepared to go to law school. I’d done a graduate seminar in Rawls’s political philosophy with Jean Hampton at UCLA, and while at Harvard Law School, I took advantage of the opportunity to take Rawls’s own course on his work. (To this day, Rawls remains a huge influence on my work.) If you’d asked me what my philosophical orientation was in 1984, the year I graduated from law school, I think I would have replied, “Rawlsian.”
    A Twist of Fate I might never have returned to virtue ethics, but for a twist of fate or two. One was the fact that my professional responsibility course at Harvard included a paper requirement, and it seemed quite natural for me to write a short paper on the implications of virtue ethics for legal ethics. But it was the second event that revived and intensified my interest in virtue ethics. I was invited to a conference on judicial selection at the University of Southern California in the late 1980s. My role was to comment on a paper by Fred Schauer (now at Harvard’s Kennedy School of Government but then at the University of Michigan).
    Schauer had written a very provocative essay, arguing that nonlawyers were qualified to become Justices of the United States Supreme Court—because the issues the Supreme Court decides are more political than legal in nature. I knew that I disagreed with that thesis. My first article [On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 University of Chicago Law Review 462 (1987)] was a critique of the indeterminacy thesis—the idea that law was politics. It seemed to me that judges ought to be selected for their possession of a set of moral and intellectual virtues—the ability to think through complex legal problems, common sense and good practical judgment, a dedication to the rule of law, as well as the general moral virtues—temperance, a good temper, courage, and so forth.
    The Birth of Virtue Jurisprudence And this quite naturally led me back to Philippa Foot and virtue ethics. My reply to Schauer [The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection, 61 Southern California Law Review 1730 (1988)] was the beginning of a project that continues today. I began to think systematically about the possibility of developing a theory of law that drew upon the framework of virtue ethics and worked out the consequences for normative jurisprudence.
    Phronesis and Equity But this wasn’t easy. There are now several different strands within virtue ethics. For example, there is a Humean strand associated with Michael Slote. But the dominant approach to virtue ethics among contemporary moral philosophers is Aristotelian (or neo-Aristotelian). This was the strand of virtue ethics to which I was drawn. One of the really nifty things about Aristotle’s ethics is his account of phronesis, the virtue of practical wisdom. This tied in nicely to my intuition that judges needed common sense and good practical judgment. I began to realize that Aristotle’s ideas about practical wisdom had strong echoes in the work of some of the legal realists. When I read Nancy Sherman’s book, The Fabric of Character, I could see an obvious connection between her notion of moral vision and Karl Llewellyn’s idea that good judging required situation sense. And all of this tied into Aristotle’s explication of equity in Book V Chapter 10 of the Nicomachean Ethics. This work resulted in a paper I gave at the annual meeting of the American Society for Political and Legal Philosophy [Equity and the Rule of Law, Nomos XXXVI: The Rule of Law 120 (1994)].
    The Problem of Justice Developing an account of phronesis and equity was really just a warm up exercise. I began to realize that virtue jurisprudence required a solution to a problem that many virtue ethicists have avoided. One could hardly claim to have developed a theory of judicial virtue without some account of the virtue of justice. But at this stage in the game, I realized that offering such an account was not going to be easy. I had read Bernard Williams’s famous article, which seemed to offer a devastating critique of Aristotle’s account of justice as a virtue. Moreover, I began to notice that philosophers tended to avoid Book V of the Nicomachean Ethics. I sat in on Gavin Lawrence’s course on Aristotle’s ethics at UCLA, and sure enough, he announced that we would not cover Book V. I sat in on Chris Korsgaard’s graduate seminar on Aristotle’s ethics at Harvard, and (no surprise to me by then), she did not cover Book V.
    Here’s the problem in a nutshell. Aristotle understands the moral virtues as a certain kind of disposition with respect to a morally neutral emotion. So courage is a disposition with respect to the morally neutral emotion of fear, and good temper is a disposition with respect to the morally neutral emotion of anger. Someone who is disposed to disproportionate fear has the vice of cowardice; someone who is disposed to react to danger without sufficient fear has the vice of rashness. Courage is a kind of mean between these two opposing vices.
    But justice doesn’t seem to fit this pattern. What is the morally neutral emotion? And what are the two opposing vices? Bernard Williams made a convincing case that what we call the virtue of justice doesn’t have a distinctive relationship with any emotion at all. Rather, justice seems to be the disposition to do what is just. And what is just, according to Williams, has to be given to us by some theory (e.g. a theory of distributive or corrective justice).
    Stuck I was stuck on this problem for quite some time—years, not hours, days, or weeks. I could see various possible solutions, but none of them seemed satisfactory. And I knew that this was not a new problem. Working out Aristotle’s views on justice was a notoriously difficult problem for Aristotle scholars and for contemporary neo-Aristotelian virtue theorists. In the next installment of A Legal Scholar’s Journal, I’ll say a bit more about the origins of the project and how I came to see a solution to the problem of justice.
    I’ve posted a guide to the installments in this series on the Legal Theory Annex. The next installment should be up in a few days. See you then!

Monday Calendar
    At Oxford today, Philippa Foot is speaking. This should be good! I will be at the talk!
    At UC Berkeley's Law & Economics workshop, Dan Rodriguez is presentingRethinking the Appropriations Canon of Statutory Interpretation.
    At the University of Chicago's law and philosphy series, Robin West (Georgetown) is speaking.
    At the University of Texas, David Sugarman, Princeton, presents 'LA Law' Encounters 'Rumpole of the Bailey': The Impact of Americanization, Europeanization and Globalization on English Legal Culture and 'Englishness'
    Correction, Jack Balkin's talk at Cardozo is tomorrow!

Sunday, April 25, 2004
Legal Theory Calendar
    Monday, April 26, 2004
      At Oxford today, Philippa Foot is speaking. This should be good! I will be at the talk!
      At UC Berkeley's Law & Economics workshop, Dan Rodriguez is presentingRethinking the Appropriations Canon of Statutory Interpretation.
      At the University of Chicago's law and philosphy series, Robin West (Georgetown) is speaking.
      At the University of Texas, David Sugarman, Princeton, presents 'LA Law' Encounters 'Rumpole of the Bailey': The Impact of Americanization, Europeanization and Globalization on English Legal Culture and 'Englishness'
    Tuesday, April 27
      At Oxford's Jurisprudence Discussion Group, Danny Priel presents Farewell to the Exclusive-Inclusve Debate. See you there!
      At Cardozo, Jack Balkin will speak on "Plessy, Brown, & Grutter: A Play in Three Acts," at 6:00 p.m. at the Cardozo Law School. Free and open to the public. Reception to follow.
      At the University of Chicago's law and economics series, Jason Johnston, Robert G. Fuller, Jr. Professor of Law and Director, Program on Law and the Environment, University of Pennsylvania Law School, presents Tradeable Pollution Permits and the Regulatory Game.
    Thursday, April 29 Friday, April 30
      At the University of Dundee (today through Sunday), Values and Virtues: Aristotelianism in Contemporary Ethics. See you there! At SUNY Buffalo, Jack Schlegel, UB presents Notes Toward a General Theory of Civil Liability and the Escape from the Plaintiff's Lawyer's Nose
      At Oxford's faculty of law, Timothy J. Muris, Chairman US FTC presents Current issues in competition and consumer policy: an international perspective. At the University of Texas, the first day of a Conference on Constitutional Concepts.
      At the The Danish Research School in Philosophy History of Ideas and History of Science, a conference entitled Moral and Legal Reasoning.
More to come, but probably not until Monday.

Legal Theory Lexicon: Holism
    Introduction Most law students are in exams at this time of year, so I will keep this entry in the Legal Theory Lexicon series relatively brief. Our topic this week is “holism,” more particularly the idea that theories of the law are (or “should be” or “can be”) holistic. Legal holism can be captured in a famous slogan, “The law is a seamless web,” and the contemporary legal theorist who is most associated with legal holism is Ronald Dworkin.
    As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. And by the way, good luck on your exams!
    The Law is a Seamless Web The idea that the law is a seamless web is familiar to almost every law student, but what on earth does this phrase mean? I think the best initial approach to this idea is to place it in the context of a common-law system. Suppose we have an unsettled question of law (e.g. a question about proximate causation in tort law). The question is unsettled in our jurisdiction, so there is no binding precedent—no prior decision of a higher court addresses the issue. But the lack of binding precedent does not imply that precedent is irrelevant to our question. The judge deciding our case with a tricky proximate cause question will want to look at the cases that deal with analogous issue. Her search for relevant case law might begin with cases on causation in tort law, but from there, it could lead to other issues and distinct doctrinal fields. For example, causation in tort is analogous to causation in criminal law. So our judge might base her reasoning in part on the way an analogous question was decided in the criminal context. And causation also arises in a variety of other legal contexts, leading our judge to move from fields that are closely related to torts, to more distant topics, including environmental law, administrative law, or even tax. Moreover, questions of proximate causation are only partly about causation, they also involve judgments about responsibility and reasonableness of conduct. In a common law system, the law is a seamless web in the sense that common-law ideas connect with one another in complex relationships of consistency and mutual support. A tremor in one region of the web of the law can in principle resonate in other region.
    Coherence and Holism The idea that holism involves wide and deep relationships of consistency and mutual support can be captured by introducing a related notion coherence. We might say that legal holists believe that a principle of coherence applies to the law as a whole. Each proposition of law ought to be consistent with every other proposition. Coherence can require more than mere consistency, however. A system of law achieves coherence at a deeper level if the normative justifications for legal propositions are consistent and mutually supporting.
    Cohererence can be local or global. The theory that the law is a seamless web can be rephrased as “the law is globally coherent,” and we might call that view “global legal holism.”
    Herculean Holism Ronald Dworkin’s theory, “law as integrity,” takes the idea that the law is seamless web to its logical conclusion. Dworkin illustrated his theory with an imaginary judge, Hercules. Because Hercules acts on the basis of the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole in order to decide any particular case. Given the holistic assumption that a change anywhere in the law can produce consequences everywhere, Hercules must constantly revise his theory—checking to assure himself that a recent change in the law of trusts does not have consequences for the best interpretation of the reasonable person standard in torts.
    Of course, actual judges are not like Hercules in this regard. No actual judge could possible construct a theory of the whole law of her jurisdiction. Actual judges must make do with theories that are local rather than global in nature. This is not to say that no actual judge has a tacit (or even partially explicit) view about the way the law hangs together as whole. Indeed, some real world judges have views that account for many different regions of the law. The most intellectual judges (Richard Posner, for example) have comprehensive legal theories that provide consistent explanations across many different doctrinal fields. But even these Herculean judges cannot actually produce a theory that fits and justifies all of the law—that would take longer than a human lifespan permits and most of the work would be terribly dull.
    Holism versus Particularism So far, I’ve been presenting a fairly sympathetic view of legal holism. But holism is a controversial view in the law. One might believe that holism is domain specific. That is, it might be the case that all of tort law hangs together, but that tort law is a more or less closed system. It could be the case that criminal law operates on a different set of principles than those that operate in tort, and hence that conclusions reached in criminal law are different from those reached in tort law on analogous questions. Of course, the domain of coherence could be a higher or lower level of generality than doctrinal field. Perhaps, perhaps all of private law is coherent, but public law operates on different principles. Alternatively, perhaps the common law and statutory law form two different fields—each coherent within its own realm but not consistent with each other. Moving to the other end of the spectrum, it might be that the law governing the tort of negligence is coherent, but that negligence and battery operate on entirely different principles.
    At the opposite end of the spectrum from global legal holism (“The law is a seamless web.”) there is at least logical space for a local legal particularism (“Take each case on its own merits.”).
    Is Holism Normative, Descriptive, or Interpretive? Before we come to a close, let’s address one final question: what kind of theory is legal holism? You may have notice that I’ve been deliberately ambiguous in my phrasing of holist claims using locutions like “is or ought to be.” One view of global legal holism is that it is a normative claim: the law ought to form a seamless web. Why? Well, that’s a big question, but one cluster of reasons for preferring consistency in the law centers around the rule of law values of predictability, certainty, and publicity.
    Another view of global legal holism is that it is a descriptive theory. As a matter of fact, judges (in common law systems) strive for consistency. The phrase—the law is a seamless web—is couched as a descriptive claim. Of course, this will be a special sort of descriptive claim, because no one thinks that the law actually is fully consistent at the global level.
    Yet another view of global legal holism is that it an interpretive theory. On this view, legal holism bears a relationship to the idea of the hermeneutic circle. The meaning of any given legal rule must be interpreted in light of the whole set of rules, and the meaning of the whole set depends on the meaning of the particular members. On this view, holism is quasi-descriptive and quasi-normative: legal interpretation both is imperfectly holistic and legal interpretation aims at global consistency.
    Conclusion The distinction between holism and particularism is quite useful. Once you begin to look, you will quickly find that many legal arguments depend on implicit assumptions about the presence or desirability of coherence in the law. In particular, it often edifying to look for how some legal arguments turn on assumptions about whether coherence should be global or local.
    Once, again, good luck on your finals!

Welcome to the Blogosphere . . . to Mere Dicta, by Boalt Hall JD student & demographer Michael Anderson.

Saturday, April 24, 2004
Download of the Week This week, the Download of the Week is Russell Korobkin's paper, A 'Traditional' and 'Behavioral' Law-and-Economics Analysis of Williams v. Walker-Thomas Furniture Company:
    Williams v. Walker-Thomas Furniture Company is a casebook favorite, taught in virtually every first-year Contract Law class. In the case, the D.C. Circuit holds that courts have the power to deny enforcement of contract terms if the terms are "unconscionable," and it remands the case to the lower court to consider whether the facts of the case meet this standard. This article, written for a session of the 2004 AALS Annual Meeting sponsored by the Contracts Section, analyzes the question that the D.C. Circuit posed to the lower court in Williams - and that Contracts teachers routinely pose to their students - from a "traditional" law-and-economics perspective, and from a "behavioral" law-and-economics perspective.
Download it while its hot!

Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Evolution: The Remarkable History of a Scientific Theory by the remarkable Ed Larson, the Pulitzer Prize Winning law professor from the University of Georgia. Here is some of the buzz about the book:
  • Peter Bowler, Professor of History of Science, Queen’s University of Belfast:
      “Ed Larson is both a historian and a writer who knows how to bring his subject alive. In Evolution: The Remarkable History Of A Scientific Theory he combines the latest historical scholarship with an understanding of recent issues in science, religion and social debate. This powerful book will help everyone understand the foundations of modern evolutionary ideas and the origins of the latest controversies.”
  • Ernst Mayr, Professor of Biology, Harvard University:
      “The history of evolutionary science from the 18th-century to the present is a history of controversies and seemingly incompatible views. It takes an author like Ed Larson to provide an account of this crucial history. . . .The reader will be rewarded by an intellectual delight.”
  • John Hedley Brooke, Professor of Science and Religion, Oxford University:
      “Between the many books on evolution, and Darwinism in particular, there is such a competitive struggle that only those with a distinctive character and well adapted to their readership will survive. Edward Larson's acclaimed gifts as a writer who can make the history of science exciting to a wide audience are visible again in a captivating study that will assuredly be successful. How has the theory of evolution evolved from the time of the French Enlightenment to the current geneticisation of culture? Larson's story, which takes seriously the cultural meanings of new science, has many twists and turns and is told with humour and vivacity.”
  • David Livingstone, Professor of Geography, Queen’s University:
      "An indispensable guide to the sometimes weird, but always wonderful, world of Evolution. Every species inhabiting this contested territory is here: Darwinian materialists, Lamarckian progressivists, hopeful-monster mutationists, theistic evolutionists, neo-vitalists, six-day creationists, mathematical geneticists, intelligent designers, molecular reductionists and on and on. Yet this is no monochrome chronicle of disengaged scientific ideas. It is a rich and compelling narrative portrayed in glorious technicolour, as grand and sweeping in scope as the theory of evolution itself. In the struggle for shelf-life among publications on evolution, Edward Larson¹s book is superbly fitted for long-term survival".
  • Ronald Numbers, Professor of History of Medicine, University of Wisconsin-Madison:
      “Larson has written a brilliant introduction to the history of evolution, equally sensitive to scientific, religious, and social factors. It is, hands down, the most readable and reliable account available.”
  • Duncan Porter, Director of Darwin Correspondence Project and Professor of Botany, Va Tech:
      “Larson masterfully takes us from the 18th century French enlightenment to the 21st century evolution wars. From Buffon and Cuvier, through Darwin and Wallace, to Dawkins, Gould, and Wilson, he provides a scholarly, readable history of the ups and downs of the theory of evolution. Larson shows us how firmly this theory is established, as firmly as Einstein's theory of relativity. It is good to see this marvelous manuscript in print.”
  • James Moore, co-author of Darwin (bestselling 1991 biography), and Professor of History:
      "Infectious good reading. The prose is limpid, the chapters are luminous; Evolution bids fair to become the standard textbook on its subject."
The book is not yet available to the public, but you can preorder on (and others) now!

Friday, April 23, 2004
A Legal Scholar’s Journal, Part One: A Project Begins
    A Legal Scholar’s Journal will be an irregular feature of Legal Theory Blog for the next several months. The journal will follow my progress as I take an article from a blank page (or “screen”) today through the early drafts of summer to the submission of the final draft to law reviews in February of 2005. Some of the early posts will discuss the origins of the project. I’ll say something about the parts of the article writing process that are rarely discussed in public—the pragmatic reasons for picking one project over another--about gaming the law reviews and taking into account the opinion leaders in the legal academy. But my next article is really being written to satisfy must one person--me. And I will also have a good deal to say about why I feel passionate about the project that I am starting today.
    As the project moves along, I’ll let you in on the writing process—the frustrations, the writer’s block, the breakthroughs, the good and bad days. Towards the end, you can follow the submission process, rejections and acceptances, deadlines, and requests for expedited review. This won’t all be fun. I rather imagine that some of the posts will be a bit cranky, and likely a number of them will reveal that the solitary business of writing a very long, very serious law review article can make one a bit goofy!
    The next installment of A Legal Scholar’s Journal will be on Monday, April 26. Part Two: Origins will take us back to the early 1980s and a classroom at the University of California at Los Angeles. You’ll meet a much younger Larry Solum, and an extraordinary group of undergraduates and graduate students at one of the world’s premier philosophy departments in one of its peak periods. You’ll meet Philippa Foot, Rogers Albritton, Tyler Burge, and two very fine political philosophers who died at tragically before their time—Greg Kavka and Jean Hampton.
    An index to A Legal Scholar’s Journal can be found over at the Legal Theory Annex. The index will allow you to navigate between the posts from one central location.
See you on Monday!

Friday Calendar
    At Notre Dame Law School, there is Symposium on Rick Hasen's book, The Supreme Court and Election Law. Follow this link for information.
    At the University of Pennsylvania's philosophy series, Allen Wood (Stanford) presents Retributivism and Kant's Moral Theory.

Thursday, April 22, 2004
Oops Looking through my unpublished draft posts today, I see that I forget to post a link to my own paper, The Aretaic Turn in Constitutional Theory. Better late than never!

Conference Announcement: Virtues & Values at Dundee
    Values and Virtues: Aristotelianism in Contemporary Ethics Dundee, April 30-May 2 2004 Roll up, roll up... Some places are still available (if you're quick) on this conference. Full price registration ?90; ?40 for students; ?45 for Scots Philosophical Club members. To register, email Tim Chappell on, and/ or send him a cheque for the relevant amount at Dept of Philosophy, University of Dundee, DD1 4HN. Provisional Conference Timetable Friday 30 April 2004 1200 on: Arrivals, registrations NB All plenary sessions, and all concurrent sessions marked (a), are in the Tower Conference Room. All concurrent sessions marked (b) are in the Training Complex, which is the room next to the Conference Room (same size but lower ceiling). 1330-1500 Plenary session 1: Theodore Scaltsas (University of Edinburgh) "The unity of pleasure" Chair: Timothy Chappell ** 1500-1520 TEA AND COFFEE (in the foyer) 1520- 1640 (a) Christopher Coope (University of Leeds) "Anscombe to Hursthouse" Chair: Nafsika Athanassoulis (b) James Williams and Rachel Jones (University of Dundee) 'Values and Virtues in Nietzsche and post-Nietzschean thought' Chair: Nicholas Davey ** 1640-1700 TEA AND COFFEE (in the foyer) 1700-1830 Keynote address: Christine Swanton (University of Auckland) "Can Nietzsche be both an Existentialist and a Virtue Ethicist?" Chair: James Williams 1900 Civic reception with the Lord Provost of Dundee, Discovery Point 1945 Conference dinner at Discovery Point Saturday 1 May 2004 0900-1020 (a) Glen Koehn (Wilfred Laurier University) "Human Goodness and the Golden Mean" Chair: Lloyd Fields (b) Timothy Chappell (University of Dundee) "Values and virtues" Chair: Michael Brady ** 1020-1040 TEA AND COFFEE (in the foyer) 1040-1210 Plenary session 2: John Skorupski (University of St Andrews) "Virtue as part of well-being" Chair: Sandra Marshall **1210-1300 BUFFET LUNCH (in the foyer) 1300-1430 Plenary session 3: Antony Duff (University of Stirling) "'The Virtues and Vices of "Virtue Jurisprudence"" Chair: Lawrence Solum ** 1430-1450 TEA AND COFFEE (in the foyer) 1450-1610 (a) Karen Stohr (Georgetown University) "Practical wisdom in Sense and Sensibility" Chair: Antony Duff (b) Michael Brady (University of Stirling) "Virtues, motives and the value problem" Chair: Talbot Brewer ** 1610-1630 TEA AND COFFEE (in the foyer) 1630-1800 Plenary session 4: Linda Zagzebski (University of Oklahoma) "The admirable life and the desirable life" Chair: John Skorupski ** 1900 DINNER (in the River Rooms, 9th Floor of the Tower) Sunday 2 May 2004 0900-1020 (a) Nafsika Athanassouli (University of Leeds) "Virtue Ethics Under Attack: Doris, Harman and the personality psychologists" Chair: Dory Scaltsas (b) Hallvard Fossheim (University of Oslo) "Aristotle on learning to be good: habituation by mimesis" Chair: Stephen Halliwell ** 1020-1040 TEA AND COFFEE (in the foyer) 1040-1210 Plenary session 5: Sarah Broadie (University of St Andrews) "Virtue and beyond in Plato and Aristotle" Chair: John Lippitt **1210-1300 BUFFET LUNCH (in the foyer) 1300-1420 (a) Talbot Brewer (University of Virginia) "Virtues we can share: friendship and Aristotelian moral theory" Chair: Jeff Seidman (b) Soran Reader (University of Durham) "Aristotle on necessities and needs" Chair: Panos Dimas **1420-1440 TEA AND COFFEE (in the foyer) 1440-1610 Plenary session 6: Adam Morton (University of Oklahoma) "Moral Incompetence" Chair: Linda Zagzebski ** 1610-1630 TEA AND COFFEE (in the foyer) 1630-1750 (a) Jeff Seidman (LSE) "Two sides of 'silencing'" Chair: Adam Morton (b) Johan Braennmark (University of Lund, Sweden) "Like the bloom on youth: how pleasure completes our lives" Chair: Hallvard Fossheim 1800-1930 Plenary session 7: Paul Russell (University of British Columbia) "Hume on virtues and capacities" Chair: Sarah Broadie 1930 Conference ends

Call for Papers: Virtue Epistemology
    Virtue Epistemology Stirling Management Centre University of Stirling 20th-21st November, 2004 Conference Overview This conference aims to bring together some of the leading philosophers in the world to discuss epistemological themes that fall broadly under the title of Virtue Epistemology. For the conference homepage, go to: This event is generously sponsored by The Philosophical Quarterly. The proceedings of this conference are provisionally scheduled to appear in a special issue of Philosophical Studies. The conference has been timed to coincide with Professor John Greco's visit to the Department of Philosophy at the University of Stirling as a 2004 Scots Philosophical Club Centenary Fellow. For further details about this visit, go to: This event forms part of the Knowledge, Mind and Value project that is based at the Department of Philosophy at Stirling. For more details about this project and its activities, go to: Speakers & Commentators Sven Bernecker (Manchester) John Greco (Fordham) Susan Haack (Miami) Chris Hookway (Sheffield) David Owens (Sheffield) Ernest Sosa (Brown/Rutgers) Michael Brady (Stirling) Jonathan Dancy (Reading) Katherine Hawley (St. Andrews) Jonathan Knowles (Oslo) Andrew McGonigal (Leeds) Alan Millar (Stirling) Duncan Pritchard (Stirling) René van Woudenberg (Amsterdam) Call for Papers There will be a number of open parallel sessions at the conference for submitted papers, including sessions specifically for postgraduate students. Reading time will be 25 minutes for postgraduate presentations, with 25 minutes discussion, and 30 minutes for non-postgraduate presentations, with 30 minutes discussion. Submitted papers should be relevant to the conference theme and of a length that is suited to the allotted time. The deadline for submissions is October 1st, 2004. Submissions should be sent to: Virtue Epistemology Conference Paper Submission, c/o Dr. Duncan Pritchard, Department of Philosophy, University of Stirling, Stirling, FK9 4LA Scotland, UK E-mail submissions will also be considered, provided that the files are in a suitable format. E-mailed submissions should be directed to Dr. Duncan Pritchard at It is a precondition of having a paper accepted for the conference programme that the speaker is registered for the conference. Registration The conference will be held at the Stirling Management Centre which is situated on the University of Stirling campus (and which is also an hotel). Delegate numbers for this conference are strictly limited and will be filled on a first-come, first-served basis. Given that interest in this event is expected to be high, prospective delegates are encouraged to register early. The full registration fee is £50, which includes lunch on both the Saturd= ay and the Sunday, tea/coffee throughout the conference, and the conference dinner on the Saturday night (including wine). A reduced registration fee of £40 is available for those who do not wish to attend the conference dinne= r. A limited number of postgraduate bursaries are available which refund the equivalent of the full conference fee. These will be allocated on a first-come, first-served basis. A registration form can be found on the conference webpages. There will also be a pre-conference dinner on Friday 19th November for those who have arrived early for the conference. This will cost £25 per head, which includes wine and transportation costs between the Philosophy Department and the restaurant. Further Information For further information about the conference, including details about how to register, go to: Alternatively, you can contact either of the conference organisers, Dr. Michael Brady ( and Dr. Duncan Pritchard (

Thursday Calendar

Wednesday, April 21, 2004
Conference Announcement: Colonialism and Its Legacies in Chicago Jacob Levy will be at this, and its just a few minutes away from the APA Central Division!
    "Colonialism and Its Legacies" The 2004 Annual International Meeting of the Conference for the Study of Political Thought University of Chicago, Gleacher Center, 450 N. Cityfront Plaza Drive. 1:30-5:45 Friday April 23 9:30-6:15 Saturday April 24 9:30-1:15 Sunday April 25 Papers by: Vicki Hsueh, David Armitage, Ofelia Schutte, Paget Henry, Sankar Muthu, Enrique Dussel, Pratap Mehta, James Tully, Jennifer Pitts, Barbara Arneil, Uday Mehta, Jesse Souza, Dipesh Chakrabarty, Emmanuel Eze, Taiaiake Alfred, Bhikhu Parekh. Discussants: Steven Pincus, Maria Torres, Kirstie McClure, Thomas McCarthy, Richard Boyd, Patricia Nordeen, Charles Mills, Fred Dallmayr

Haviv-Segal on a Theory of Social Institutions Irit Haviv-Segal (Tel Aviv University - Buchmann Faculty of Law) has posted A Cost-benefit Theory of Social Institutions on SSRN. Here is the abstract:
    This article presents a new theory of institutions. It develops a novel answer to the theoretical question, why do social institutions emerge? The theory is general and applies to all forms of incorporation, including religious organizations, business corporations, partnerships, professional guilds, marriage, non-profit organizations, political parties, local governments, and even the State. The analysis associates the emergence of social institutions with uncertainty: individuals join together in a social institution when they face substantial difficulties in predicting the future. The new theory suggests a rationality-based explanation to the human tendency "to hold hands in the dark." Furthermore, the level of uncertainty determines the level of coercion within the institution: the more uncertainty the members face, the more stringent institution they would be willing to form. Phenomena, like dictatorship or terrorism, are the direct outcomes of increased levels of uncertainty. Finally, the analysis refers to several operative conclusions. Mainly, it presents a new framework for analyzing the mechanisms of minority protection within the organization.

Cohen on The Best Pharmaceuticals for Children Act I. Glenn Cohen (Law Clerk, U.S. Court of Appeals for the First Circuit) has posted Therapeutic Orphans, Pediatric Victims? The Best Pharmaceuticals for Children Act and Existing Pediatric Human Subject Protection (Food and Drug Law Journal, Vol. 58, No. 4, pp. 661-710, 2003) on SSRN. Here is the abstract:
    In 2002 the President signed into law the Best Pharmaceuticals for Children Act, which gives incentives for research on a group that has previously been considered therapeutic orphans when it comes to drug safety and dosage testing: Children. The Act offers an extra 6 months of market exclusivity for a drug if the manufacturer conducts drug trials in pediatric populations meeting FDA's requirements. While the intent of Congress with this act was to make drugs safer for children, it is an open question whether this is being achieved at the expense of pediatric research subjects, and the threat of a race to the bottom in research ethics looms large. This Article describes the Act, its origins, and existing federal regulations protecting children as research subjects, while reviewing the history of pediatric research and the bioethical dilemmas it poses. The Article then discusses shortcomings in the existing scheme and describes necessary changes to better protect the welfare of children in the research setting.

Call for Papers: Multiculturalism and the Civil Society
    Call for Papers "Multiculturalism and the Civil Society" Journal for the Study of Religions and Ideologies (JSRI) Issue no. 8 (August 2004) J.S.R.I. is an international publication of the Seminar for the Interdisciplinary Research of Religions and Ideologies, the Department of Systematic Philosophy from Babes-Bolyai University (Cluj, Romania) and SACRI ( It is a peer-review academic publication intended for academics, professors and young researchers interested in the study of religions and ideologies (ISSN 1583-0039). So far, JSRI has published 6 issues, with a total of more than 1400 pages. J.S.R.I. is an open-access journal published on the Internet, with three issues per year. The languages in which materials can be published are English and Romanian. J.S.R.I encourages the submission of the following types of materials: - theoretical studies written by experts in the field, well-known specialists and academics - applied articles, regional-focused, reflexive and comparative texts written by graduate students, junior lecturers - book reviews The length of the materials should range between 10-25 pages for studies and articles and between 2-7 pages for book reviews (Times New Roman, 12 pts, 1.5 lines). The topic for the issue no. 8 is Multiculturalism and the Civil Society. J.S.R.I. encourages interdisciplinary approaches engaging the following domains: interreligious dialogue, philosophy of religions, political philosophy and political science, ethics, religious studies, anthropology, sociology, educational science and communications theory. We are expecting papers on this topic until the 1st of July 2004 the latest. The materials should be accompanied by the following: - a 10 line abstract (in English) (except for book reviews) - up to 10 key words (in English) that best describe the content of the material - half page CV of the author, mentioning the contact details, and a list of up to 10 major publications - a personal picture (optional) All texts should be sent as attachments at one of the following e-mail addresses: Contact: Mihaela Frunza, Executive Editor Babes Bolyai University Department of Systematic Philosophy M. Kogalniceanu no.1 400084 Cluj Romania phone +40 744 698826 email: Website:

Conference Announcement: Marx and Philosophy
    Marx and Philosophy Society Inaugural Conference Saturday 29th May 2004: 10:30am - 6.00pm Room 728, Institute of Education University of London 20 Bedford Way, London WC1H OAL 10.30 Registration 11.00-12.30 Andrew Collier (University of Southampton) 'Marx as a Conservative Thinker' Respondent: David McLellan (Goldsmiths College) 1.30-3.00 Martin McIvor (London School of Economics) 'The State of the Understanding: Politics and Epistemology in Marx's Earliest Writings' Respondent: Lawrence Wilde (Nottingham Trent University) 3.30-5.00 David Harvey (City University of New York) `Space as a Key Word' Respondent: Andrew Chitty (Sussex University) 5.15-6.00 Organisational meeting of the Society Registration (including society membership) £8 waged; £5 unwaged Registration form: Contact: Andrew Chitty ( Department of Philosophy, University of Sussex, Falmer BN1 9QN Tel. 01273 678296 The Marx and Philosophy Society aims to encourage scholarly engagement with, and creative development of, the philosophical and foundational aspects of Marx's work. The society welcomes contributions from any philosophical or political position. Organisers: Chris Arthur, Andrew Chitty, Joseph McCarney, Sean Sayers

Conference Announcement: Human Rights in the Age of Terrorism
    Conference Announcement "Human Rights in an Age of Terrorism" Inaugural Conference The Human Rights Institute, University of Connecticut September 9-11th, 2004 In the globalizing, post Cold War era of the 1990s, human rights came to play a more salient role in establishing stability in the global order, and ensuring more democratic forms of political and economic participation at the local level. During this time, significant advances were made in creating international human rights institutions which could enforce human rights. Since 2001, the "war on terror" has led to a disconnection between human rights and security concerns and the project to build a system of global justice has been derailed. Human rights advocates have not yet articulated a coherent response to the new global security regime, nor reconceptualized human rights so that they may be more responsive to security concerns. This conference aims to understand and redefine the place of human rights in the present international political order, and to identify the ways in which human rights and security imperatives can be reconciled. The conference will bring together leading figures in the field of human rights to examine the impact of the ‘war on terror’ on human rights worldwide, and to seek to reconcile civil liberties with the need for security. Sessions: - Human Rights and Security - Civil Liberties in the War on Terror - Unilateral or Multilateral Strategies for Defending Human Rights? - Redefining Human Rights and Security Sackler Human Rights Lecture: Michael Ignatieff Speakers include: Ken Anderson, Thomas Cushman, Richard Falk, Michael Freeman, Peter Galison, Richard Goldstone, Carol Greenhouse, Christopher Hill, David Luban, Angelia Means, Julie Mertus, Martha Minow, Aryeh Neier, Wiktor Osiatynski, Geoffrey Robertson, Mary Robinson, and Martin Shaw. Organized by Richard A. Wilson, Human Rights Institute. More details and registration at our website. Contact: Rachel Jackson Thomas J. Dodd Research Center University of Connecticut U-1205, Storrs, CT 06268 USA Tel: +1-860-486-5393 Fax: +1-860-486-6332 Email: Website:

Conference Announcement: Truth & Realism This event has a spectacular lineup!
    CONFERENCE ANNOUNCEMENT TRUTH & REALISM MAIN CONFERENCE June 17th-20th 2004 Webpage: Prelim.htm Email: Main Speakers: Robert Brandom: A Semantics Without Truth Michael Devitt: Scientific Realism Terence Horgan: Indirect Correspondence and Contextual Semantics Paul Horwich: Robust Realism and the Frege-Geach Point John McDowell: Dummett on Meaning and Truth-Conditions Ernest Sosa: Truth in Epistemology Michael Williams: Deflationism and Realism Crispin Wright: Minimalism and Relativism Conference Commentators: Simon Blackburn Richard Rorty Timothy Williamson Commentators: JC Beall Marian David Dorothy Edgington Chris Gauker John Hawthorne Jane Heal Michael Lynch Mark Richard Chairpersons: Pascal Engel Jennifer Hornsby Peter Pagin Sven Rosenkranz Tadeusz Szubka Alessandra Tanesini Brian Weatherson Ralph Wedgewood Conference Organisers: Patrick Greenough Michael Lynch

Wednesday Calendar
    At NYU's legal history series, Taja-Nia Henderson, NYU, presents State of Confinement : County Jails and the State Penitentiary in Old Virginia, 1800-1865.

Tuesday, April 20, 2004
Moving Day How Appealling, the legal blog by Howard Bashman is now here!

Monday, April 19, 2004
Book Announcement
    Princeton University Press has just announced Lawlessness and Economics: Alternative Modes of Governance by Avinash K. Dixit. Here is the description:
      How can property rights be protected and contracts be enforced in countries where the rule of law is ineffective or absent? How can firms from advanced market economies do business in such circumstances? In Lawlessness and Economics, Avinash Dixit examines the theory of private institutions that transcend or supplement weak economic governance from the state.
    Follow this link for a sample chapter.

Balkin on the Second Amendment & Iraq I rarely post to blogospheric comments about Iraq (no legal theory connection), but check out this by Jack Balkin. Republicanism, constitutional theory, and Iraq--all in one post.

Statutory Construction Blog The new installment of Gary O'Connor's fine Statutory Construction Zone is up!

Entry Level Hiring I may regret this, but I am going to attempt to compile a list of entry level hires at American law schools. Now that the dust has settled, if you can report on entry level hires for your institution (or if you have been hired), send me an email at: It will probably take about a month to compile all the results & I will probably repeat this plea for assistance several times. Thanks if you can help!

Hasen on Money in Politics Check out Rick Hasen's editorial in the Los Angeles Times. Here's a taste:
    Most Americans today accept the one person, one vote ideal, and, consistent with that ideal, it is simply wrong that economic power should be so easily translated into political power. Wealth should not determine one's ability to run for office, nor should it affect the outcome of close election campaigns. On the other hand, spending limits can pose dangers because they allow incumbent politicians to protect themselves, in the name of reform, from honest competition. For this reason, the court should approve spending limits only when they are coupled with ample public financing of campaigns to assure a rich and robust debate among many interested parties.
And on Friday, there is a conference on Hasen's new book at Notre Dame. Here's the link to the info.

Monday Calendar
    At the Stanford Law and Technology Association (SLATA) and the Center for Internet and Society (CIS), Chris Sprigman presents Reform(aliz)ing Copyright.
    At Vanderbilt's John Rawls Lecture Series, Chantal Mouffe presents John Rawls and the Limits of Liberal Pluralism.
    Also at Vanderbilt, in the Law & Business Seminar Series, Reinier Kraakman is speaking.
    At Loyola Marymount, James Konow, Professor, Department of Economics, LMU, presents Fairness Biases: The Effects of Stakes and Information.
    At NYU, Ziba Mir-Hosseini presents Islamic Law, Secularism, and Feminism: A New Relationship.
    At the University of Texas, Michael Dowdle, Chinese University of Hong Kong, presents Visiblizing the Invisible Hand.

Spiwak on Telecom Policy Lawrence J. Spiwak (Phoenix Center for Advanced Legal & Economic Public Policy Studies) has posted The Telecoms Twilight Zone: Navigating the Legal Morass Among the Supreme Court, the D.C. Circuit, and the Federal Communications Commission on SSRN. Here is the abstract:
    Given the conflicting characteristics of the telecoms business - i.e., huge dollars at stake on the one hand but the inherent "public utility" characterization of the industry on the other - public policy decision-making can often take on a surreal quality. After the events of the first half of 2002, however, the politics of telecoms are becoming just plain weird. First, the Federal Communications Commission (FCC) announced a new broadband initiative and releases three Notices of Proposed Rulemaking (NPRMs) and one Notice of Inquiry, all ostensibly designed to provide investors with sufficient regulatory clarity so as to lead to more advanced broadband deployment. Rather than focus on how to promote new entry and mitigate incumbents' market power for the "last mile", these "Four Horsemen of the Broadband Apocalypse" so nakedly seek to benefit incumbent monopolists exclusively that they collectively act as a proposal by the FCC to abandon the pro-competitive provisions of the Telecommunications Act of 1996. Shortly thereafter, the Supreme Court in Verizon et al v. FCC clearly upheld the FCC's forward-looking "Total Element Long-Run Incremental Cost" ("TELRIC") methodology for unbundled network element ("UNE") pricing and other unbundling rules. The Verizon decision finally put an end to nearly seven years of Regional Bell Operating Company ("RBOC")-driven litigation surrounding the Telecommunications Act of 1996. More importantly, however, the Court made several important findings of law and fact (including, inter alia, that the Bells are monopolists for the "last mile" and, as such, Congress specifically decided to treat Competitive Local Exchange Carriers or "CLECs" and RBOCs differently) that rips the analytical heart out of the RBOC arguments against the Act - and, by extension, the FCC's current "inter-modal" broadband initiatives. Less than a fortnight after the Supreme Court finally resolved these issues conclusively in Verizon, the D.C. Circuit issued its opinion in United States Telecom Association et al. v. FCC, which significantly handcuffed the FCC's ability to identify network elements that incumbent local exchange carriers (ILECs) must unbundle pursuant to the 1996 Telecom Act. In a startling act of judicial activism, the D.C. Circuit cited Supreme Court Stephen Breyer's dissent from AT&T Corp. v. Iowa Utilities Board repeatedly and virtually ignored the Supreme Court Majority's rejection of RBOC anti-unbundling arguments in Verizon. In both in terms of analysis and factual conclusions, therefore, the USTA decision appears to ignore deliberately the Supreme Court's holding in Verizon made less than two weeks earlier. These two widely inapposite cases place the FCC into the "Telecoms Twilight Zone" from any conceivable perspective: legally, economically and, of course, politically. On one hand, the Supreme Court's Opinion in Verizon simply confirms the obvious: the FCC's proverbial "Four Horsemen" - if adopted as currently proposed - are patently antithetical to the maximization of consumer welfare and must be revised. On the other hand, the D.C. Circuit's Opinion in USTA appears to give the FCC the perfect legal and political cover to adopt the anti-unbundling agenda of the RBOCs. This Policy Paper examines both the Verizon and USTA decisions, and argues that if the FCC truly is in favor of less government and a market economy, therefore, then the FCC must demonstrate by both word and deed that the problem remains one of monopoly and not the lack of regulatory certainty.

Plotkin on Software Patent Reform Robert Plotkin (Boston University - School of Law) has posted Computer Programming and the Automation of Invention: A Case for Software Patent Reform (UCLA Journal of Law and Technology, Vol. 7, 2003) on SSRN. Here is the abstract:
    Software differs from other electromechanical technologies because of the unique process by which software programs are invented. In particular, software developers create novel executable software programs, which are components of a computer, by conceiving of and specifying such programs solely in terms of their logical structure. As a result, computer programmers need not engage in physical structural design, which historically has been necessary to invent electromechanical devices. This feature of software development violates the assumptions of patent law, which generally requires that electromechanical inventions be conceived, described, and claimed in terms of their physical structure. Patent law should allow software to be conceived, described, and claimed in terms of its logical structure to produce a better fit between patent law and software.

Bratton on Pari Passu Clauses William W. Bratton (Georgetown University Law Center) has posted Pari Passu and a Distressed Sovereign's Rational Choices on SSRN. Here is the abstract:
    This Article interrogates the possibility that pari passu clauses in sovereign debt contracts legitimately can be read broadly so as to require pro rata payments to foreign creditors by sovereigns in default and forbid payments to favored classes of creditors. Many subscribe to a narrow interpretation, under which the clauses cover only contractual and legal priorities and do not regulate payments. The narrow interpretation makes sovereign debt compositions easier to conclude by depriving holdout creditors of a disruptive enforcement tool, arguably benefiting the bondholders as a group. This Article highlights benefits for the bondholders as a group under the broad reading, shifting to an ex ante time perspective and situating the clause in the economic context of sovereign lending. Debt contracts benefit sovereign bondholders in three ways when they create frictions that retard later compositions. First, the contracts diminish the likelihood of default by opportunistic sovereigns seeking to externalize the effects of economic reverses. Second, assuming severe financial distress, they make it less likely that the defaulting sovereign will attempt to impose the burden of restructuring on the particular class of bonds. Third, assuming a restructuring, they improve the bondholders' bargaining position. More generally, the pari passu clause, read broadly, constrains the distressed sovereign's range of choices, enhancing the enforcement power of the bonds, and arguably lowering the long run cost of sovereign debt capital. The Article depicts sovereign debt as a world of tradeoffs and contradictions, where a contract that makes the bondholders better off means one thing on the day it is executed and delivered and another thing in the event of severe distress later on. With private debt, such contradictions are surmounted through the intervention of the bankruptcy regime. With sovereign debt there is no bankruptcy, forcing the parties to paper over the tensions between ex ante and ex post by drafting vaguely. Intractable questions of interpretation arise in consequence. From this perspective, judicial attachment of the broad reading can be justified without being dictated and without the narrow reading being rendered implausible or illegitimate. The interpreting court must choose between the readings under uncertainty.

Lemmens and Miller on Human Subjects Trudo Lemmens and Paul B. Miller (University of Toronto - Faculty of Law and University of Toronto - Faculty of Law) have posted The Human Subjects Trade: Ethical and Legal Issues Surrounding Recruitment Incentives (Journal of Law, Medicine & Ethics, Vol. 31, pp. 398-418, Fall 2003) on SSRN. Here is the abstract:
    Offers to health-care professionals of finder's fees ranging between $2,000 and $5,000 per subject referred to clinical trials are now common in the United States and Canada. Finder's fees have to be situated in the larger context of the commercialization of medical research and the growing demand for research subjects. This article first discusses the context in which these financial recruitment incentives are used and the potential impact on research subjects and on the integrity of the research process itself. The authors then argue that it is inappropriate to rely on IRBs to curb the negative consequences of this practice, because of the conflicts of interest embedded in the current IRB system and the vagueness of the guidelines they are asked to apply. The authors highlight how more stringent legal means can be used to control this practice, including statutes governing the professions, tort law, law of fiduciary duty, and criminal law. They emphasize that stricter oversight of conflicts of interest by institutional and regulatory authorities and better enforcement of existing regulatory and legal remedies are needed to safeguard the rights and well-being of research subjects and to preserve the integrity of the research process.

Sunday, April 18, 2004
Legal Theory Calendar
    Monday, April 19
      At the Stanford Law and Technology Association (SLATA) and the Center for Internet and Society (CIS), Chris Sprigman presents Reform(aliz)ing Copyright.
      At Vanderbilt's John Rawls Lecture Series, Chantal Mouffe presents John Rawls and the Limits of Liberal Pluralism.
      Also at Vanderbilt, in the Law & Business Seminar Series, Reinier Kraakman is speaking.
      At Loyola Marymount, James Konow, Professor, Department of Economics, LMU, presents Fairness Biases: The Effects of Stakes and Information.
      At NYU, Ziba Mir-Hosseini presents Islamic Law, Secularism, and Feminism: A New Relationship.
      At the University of Texas, Michael Dowdle, Chinese University of Hong Kong, presents Visiblizing the Invisible Hand.
    Wednesday, April 21
      At NYU's legal history series, Taja-Nia Henderson, 2nd Year Law Student, NYU, presents State of Confinement : County Jails and the State Penitentiary in Old Virginia, 1800-1865.
    Thursday, April 22 Friday, April 23

Legal Theory Lexicon: Fit and Justification
    Introduction It is exam time for most law students, so this week's Legal Theory Lexicon focuses on an idea that is directly relevant to writing the answer to a paradigmatic law school issue spotter. In 1975, Ronald Dworkin wrote Hard Cases (88 Harvard Law Review 1057 (1975) reprinted in Ronald Dworkin, Taking Rights Seriously ch 4 (Harvard University Press, 1977)). This is one of the most famous and influential articles in contemporary legal theory, and I would put it very high on my recommended legal-theory reading list. Lot's of Dworkin's ideas are very controversial, but one of his claims has become part of the way that most legal academics think about the law in general and the enterprise of judging in particular. I am referring to Dworkin's distinction between "fit" and justification" and his claim that when judges decide hard cases, they choose the interpretation of the law that best fits and justifies the existing legal landscape--the constitution, statutes, regulations, and common law.
    As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. I know you are all very busy at this time of year, so I will do my best to be concise.
    The Basic Idea Suppose a judge is deciding a hard case. It could be a common law case or a constitutional case or a statutory case. How do judges approach this task when they are confronted with a case in which the law is up for grabs? That is, how do judges decide cases where there is an unsettled question of law? Dworkin's basic idea is that the process of deciding a hard case has two dimensions--fit and justification. First, the judge might ask herself, "Of all the possible interpretations of the law that I could adopt as the basis for my decision, which one is consistent with the theory that best fits the existing legal landscape. Of all the rules I could adopt in this case, which ones are consistent with the relevant constitutional and statutory provisions and with the precedent." When the judge had identified the alternatives that meet the criterion of fit, it is possible that there will be more than one possibility that fits. If so, then the judge can go on to ask the question, "Of the interpretations of the existing law that fit the constitution, statutes, and case law, which is the best interpretation? Which of the possible legal rules that I could adopt is most consistent with the normative theory that provides the best justification for the law as a whole.
    ? Fit What does it mean to say that a given rule fits the legal landscape? Suppose you are a judge deciding whether your jurisdiction will adopt the rule of contributory negligence or will choose instead to follow the comparative negligence approach. It is possible that only one of these two rules fits the existing law in your jurisdiction. For example, if the legislature has mandated the contributory negligence rule by statute, then as a judge (even a Supreme Court judge), you would be obliged to follow the statute and decide the case before you on the basis of contributory negligence. On the other hand, suppose you are in a newly created jurisdiction. No statute or binding precedent requires either comparative or contributory negligence. Both rules fit the existing legal landscape. In that case, Dworkin argues, you would need to decide a question of justification.
    Justification What does it mean to say that a judge might prefer one rule over another on the basis of the criterion of rustication? Let's continue with our example of the choice between contributory and comparative negligence. Since there is no statute or precedent that compels (or strongly guides) the choice, the judge must turn to some other basis in order to make her decision. She will need to get normative, i.e., to consider the normative justifications for tort law. Simplifying greatly, let's suppose our judge decides that the tort of negligence is best understood as a system of compensation and "risk spreading." She might then reason that the comparative negligence rule does a better job of serving this purpose than does a contributory negligence rule. Contributory negligence allows losses to go uncompensated when the plaintiff (victim) caused any of her own loss; comparative negligence does a better job of spreading the risk of accidents. [I know that this is a very crude argument, and I'm sure all of you can do better.]
    In other words, the judge asks the question, "What normative theory best justifies the existing law and negligence?" And then proceeds to the question, "Given that justification of tort law, which of the alternative rules that I could apply to the case before me best serves the purposes of tort law?" Two Kinds of Justification: Principle and Policy In Hard Cases, Dworkin identified two different kinds of arguments that can be used to justify the law. He called these two different types arguments of "principle" and "policy." As understood by Dworkin, arguments of principle are arguments that appeal to ideas about fairness and rights. If you would like to know more about arguments of principle, a good place to begin is with the Legal Theory Lexicon entry on Deontlogy.
    Arguments of policy, on the other hand, appeal to consequences. For example, if you argued that a comparative negligence rule is better than a contributory negligence rule because it provides optimal incentives for taking precautions against accidents, you would have made an argument of policy in Dworkin's sense.
    If you are interested in the theoretical basis for arguments of policy, you could take a look at the Legal Theory Lexicon entry on Utilitarianism.
    Dworkin himself argued that judges should consider arguments of principle and should not decide cases on the basis of arguments of policy. That feature of his theory is hugely controversial--as you could guess if, like most law students, you've heard endless discussion of policy in the classroom. But Dworkin could be right about "fit and justification," even if he is wrong that the dimension of justification is limited to principle and excludes policy.
    Conclusion It is very difficult to generalize about law school exams; they vary enormously. But many standard issue spotting essay questions have built into them a "hard case," an aspect of the fact pattern that is intended to trigger your discussion of the question, "What should the rule be?," with respect to some controversial legal issue. If you try to answer the question, "What should the rule be?," by telling your instructor, "Here is the majority rule," or "Here are two alternative rules; I don't know which one is the law, you will have missed the point of the question!
    And that's where Dworkin comes in. You can use "fit and justification" as the basis for organizing your answer to a "What should the law be?" question. Begin with fit. Which possible rules are consistent with the settled law? Then move to justification. Of the rules that fit, which is the best rule? Now list the arguments of principle and policy for and against each of the plausible candidates. Be sure to come to a conclusion. That is, end with something like, "Adopting a rule of comparative negligence is required by the theory that best fits and justifies the existing law of torts."
    Good luck on your final exams!

Saturday, April 17, 2004
My Session at MPSA I'm speaking today at MPSA. Here are the details of the session:
    CONTEMPORARY CONSTITUTIONAL THEORY Sandburg 7, 7th Floor, Palmer House Hilton Chicago Saturday 8:30 a.m. Chair Brad Hays Why We Did Not Expect Lawrence v. Texas (2003): A Critique of Judicial Minimalism
      Ron Kahn, Oberlin College Overview: The social construction process is central to nonoriginalist Supreme Court decision-making. Because of its significance we can explain why the Supreme Court overturned Bowers v. Hardwick (1986) in the landmark Lawrence v. Texas (2003) decision and why many scholars failed to predict the Lawrence decision. By doing so we can also pinpoint major theoretical problems in Cass Sunstein’s concept of judicial minimalism.
    Liablity Rules for Constitutional Rights
      Eugene Kontorovich, George Mason University Overview: Constitutional law assumes that rights should always be protected by property rules – that is, the government can only take them with the individual’s consent. This Article extends to constitutional law the insights of Calabresi and Melamed’s famous article on property and liability rules. Whether rights should be protected by property rules or liability rules depends on the transaction costs of negotiating a transfer of rights.
    The Virtue of Justice: An Aretaic Approach to Legal Formalism
      Lawrence B. Solum, University of San Diego Overview: This paper advances the project of virtue jurisprudence by offering an account of the virtue of justice as a component of an aretaic theory of judging. Because the rule of law requires formalist judging, justice can best be understood as the disposition to decide disputes on the basis of the rules laid down, good judging requires an ability to set aside one's own preferences and act out of fidelity and respect for the law.
    Judicial Minimalism and Formal Justice
      Jeffrey Brand-Ballard, George Washington University Overview: This paper intercedes in a jurisprudential debate between Cass Sunstein and U.S. Supreme Court Justice Antonin Scalia. Sunstein defends a minimalist approach to constitutional adjudication, eschewing width and depth in favor of narrow, shallow decisions. I explore the capacity of minimalism to support recent progressive court decisions against formalist arguments. Scalia offers such arguments in his dissenting opinions in two landmark gay rights cases, Lawrence v. Texas (2003) and Romer v. Evans (1996).
    Disc. Ira Strauber, Grinnell College Emery Lee, Case Western Reserve University

Legal Theory Bookworm This week the Legal Theory Bookworm recommends The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence by Howard Gillman:
    The Constitution Besieged offers a compelling reinterpretation of one of the most notorious periods in American constitutional history. In the decades following the Civil War, federal and state judges struck down as unconstitutional a great deal of innovative social and economic legislation. Scholars have traditionally viewed this as the work of a conservative judiciary more interested in promoting laissez-faire economics than in interpreting the Constitution. Gillman challenges this scholarly orthodoxy by showing how these judges were in fact observing a long-standing constitutional prohibition against "class legislation." Originally published in cloth by Duke University Press, this book received the 1994 C. Herman Pritchett Award for the "Best Book in the Field of Law and Courts," awarded by the Law and Courts Section of the American Political Science Association.
    And here is some of the praise for this truly excellent book:
      "A fascinating and intelligent analysis of Supreme Court jurisprudence from the Civil War until the second New Deal cases of 1937. . . . This book is must reading for all interested in constitutional law and its relationship to politics and the economy."—David Schultz, Law and Politics Book Review
      "A broad, clearly written, and lucidly argued reinterpretation of American constitutional history. . . . [It] deserves the attention of all students in the field."—Edward A. Purcell, Journal of American History
      "[This book] will enlarge any reader’s view of the Lochner era, even those who know their constitutional history well."—Herbert Hovenkamp, Constitutional Commentary
      "Gillman makes a persuasive argument for the revisionist theory of Lochner era. . . . No scholar has developed that thesis in such a sustained and systematic fashion. An important contribution to the literature."—David M. O’Brien, American Political Science Review
      "Must reading for legal scholars and historians who are interested in understanding the Lochner Era, the Supreme Court, and doctrinal change."—Roger Kahn, Journal of Politics
      "This book is of immense importance in the field of American constitutional history."—Michael Les Benedict, Ohio State University
      "Richly detailed and engagingly written. . . . Gillman contributes to an emerging post-Realist reconsideration of Supreme Court jurisprudence."—James C. Foster, Legal Studies Forum
      "An important work."—Mark Tushnet, Georgetown University

Download of the Week This week the Download of the Week is Credible Coercion by Oren Bar-Gill and Omri Ben-Shahar. Here is the abstract:
    The ideal of individual liberty and autonomy requires that society provide relief against coercion. In the law, this requirement is often translated into rules that operate post-coercion to undo the legal consequences of acts and promises extracted under duress. This Article argues that these ex-post anti-duress measures, rather than helping the coerced party, might in fact hurt her. When coercion is credible - when a credible threat to inflict an even worse outcome underlies the surrender of the coerced party - ex post relief will only induce the strong party to execute the threatened outcome, to the detriment of the coerced party. Anti-duress relief can be helpful to the coerced party only when the threat that led to her surrender was not credible, or when the making of threats can be deterred in the first place. The credibility methodology developed in this Article, descriptive in nature, is shown to be a prerequisite (or an important complement) to any normative theory of coercion. The Article explores the implications of credible coercion analysis for existing philosophical conceptions of coercion, and applies its lessons in different legal contexts, ranging from contractual duress and unconscionability to plea bargains and bankruptcy.

SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. Here are some of the categories of interest to legal theorists:

Friday, April 16, 2004
Legal Theory Calendar

Computer World on Internet Governance Stephen Bell has a short piece on Internet Governance entitled Internet governance debate heats up. Here is an excerpt from the introduction:
    The debate on future governance of the internet is heating up, with a United Nations ICT taskforce convening a “global forum” late last month on the subject and those prominent in the IT and political worlds having plenty to say around the edges. Vint Cerf, one of the “fathers of the internet”, told the forum that the internet had developed openly and freely without much governmental or other oversight because its technical rules had been developed openly and adopted voluntarily. The very openness of internet design has fuelled its evolution, as participants in its operations and development have been able to contribute new ideas and applications, he says. As the internet continued to evolve it had begun to incorporate functions that had long been the subject of considerable regulation, and this has raised the question whether it needs more governing, Cerf says. But more important are the uses to which the internet is put. If there is a need to govern, one should focus more on the use and abuse of the network and less on its operations, he suggests. A number of national lobbies are proposing a governmental and intergovernmental role in such low-level technical matters as administration of domain name spaces and management of the root DNS servers
And this is from the conclusion:
    The surrounding debate has generated a good deal of learned study, one example being a 115-page paper by San Diego University legal scholar Lawrence Solum. Solum, following author Lawrence Lessig, cautions that any governance and law-making measures should respect the layered structure of the internet, and not impose rules at one layer that have an unintended broader effect at another layer. A crude example of bad law would be to propose cutting physical internet links (the bottom layer of at least six) to solve a problem with unacceptable content (the top layer). Solum’s paper is here.
My coauthor is Minn Chung!

Mann on State Bankruptcy Legislation Ronald J. Mann (University of Texas at Austin - School of Law) has posted The Rise of State Bankruptcy-Directed Legislation (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:
    This is a paper for a conference at Cardozo Law School on the relation between securitization and secured credit. Concerns about securitization have been focused by decisions of various States to take the lead in attempting to decide how those issues will be resolved in bankruptcy proceedings. In this paper I step back from that debate to ask a more fundamental question: who is to decide the appropriate policy response to those issues? On the one hand, Congress could decide those questions in the exercise of its exclusive constitutional power to enact bankruptcy laws. Or, if it chose to do so, in the exercise of its authority over interstate commerce. Conversely, the states could resolve those questions in the exercise of their traditional control over basic issues of commercial law, reflected most prominently in the Uniform Commercial Code. Securitization raises difficult policy questions in part because it falls at the boundary between those two spheres: the effect and legitimacy of those transactions is plainly is an important question of commercial law, but much of what is most important involves specific questions about how the transactions are treated in bankruptcy. This paper is distinct from the body of existing literature on the topic because I am focusing not on the commercial-law questions common to discussions of the topic - Are the securitization transactions efficient? Do they inappropriately undermine the stability of originators? - but instead on federalism questions: as a matter of allocation of power, when does the supervening power of federal law preempt state efforts to address those questions? My analysis proceeds in three steps. First, I describe the basic system that successfully delineated responsibility between Congress and the state legislatures until recent years (perhaps about 1990), and a number of systemic factors that have caused the old system to break down. Second, I discuss examples of potentially problematic legislation - not only legislation related to securitization, but other pieces of state legislation that have their primary effects in the bankruptcy of the affected parties. Finally, I use those examples to illustrate when those statutes should - and should not - be held preempted by Congress's authority under the Bankruptcy Code.

Thursday, April 15, 2004
In the Windy City: Midwest Political Science Association Today through April 18, I will be attending the MPSA's 62nd Annual National Conference, held at the Palmer House Hotel in Chicago. Several bloggers will be in attendance, including Jacob Levy, Randy Barnett, Dan Drezner, and Henry Farrell.

Today at MPSA 6: Judicial Selection I'm always very interested in work on judicial selection:
    JUDICIAL RECRUITMENT AND THE JUDICIAL CAREER THUR 3:30 Chair Charles S. Lopeman, University of West Georgia
    Merit Selection Revised: The New Politics of Judicial Selection in Florida
      Rebecca Mae Salokar, Florida International University D. Jason Berggren, Florida International University Kathryn A. DePalo, Florida International University Overview: This paper examines the impact of changes to the merit selection process of trial and appellate judges in the state of Florida during Governor Jeb Bush's tenure (1998 to present). The changes, crafted by the legislature, sought to give the executive branch more influence over the judicial nominating commissions. We ask whether these changes had any impact on the type of persons appointed by the governor to the bench.
    Promotion of District Court Judges to the U.S. Courts of Appeals: the Influence of Voting for the Government
      Karen Swenson, Eastern Illinois University Overview: In seeking to fill openings in the U.S. Courts of Appeals, there is a trend for presidents to elevate district court judges. This study attempts to explain what factors predict whether a district court judge will receive a promotion. In particular, I hypothesize that among district court judges of the president's party, the frequency with which a judge votes in favor of the U.S. government predicts the likelihood of the judge's promotion.
    Taking it to the Next Level: The Elevation of District Judges to the US Courts of Appeals
      Donald R. Songer, University of South Carolina Elisha C. Savchak, University of South Carolina Overview: Much of the study of public law is dedicated to the investigation of judicial selection to the federal courts. In the US, as in many common law countries, a large number of appellate court vacancies are filled by elevating a judge from the court below. Therefore, an interesting question arises: how can we predict the likelihood that any given judge will be elevated when such a vacancy occurs? In other words, are there systematic patterns associated in elevating federal judges to a higher court? Our paper explores this compelling and important question.
    Presidential Strategies in Supreme Court Justice Selection
      Tony L. Hill, University of Minnesota Overview: Paper presents a model evaluating the strategies presidents used from 1937 to 1994 in choosing Supreme Court nominees. The model looks at four basic strategies that followed from consideration of 1) whether the president was interested in changing the court ideologically; and 2) the climate in the Senate at the time of the nomination. Deviating from the ideal strategy (per the model) increased the likelihood of rejection by the Senate. The model could be applied prospectively as well.
    Disc. Charles S. Lopeman, University of West

Today at MPSA 5: The Rule of Law Revisited Another great topic:
    THE RULE OF LAW REVISITED THUR 1:30 Chair Dennis Goldford, Drake University
    The Rule of Law: An Indispensable Concept?
      Daniel N. Hoffman, Johnson C Smith University Overview: Different elaborations of "the rule of law" have different normative and empirical strengths and weaknesses. The question remains whether any version of the concept is satisfactory, and what would be the implications of a negative answer.
    Learning from the Great Council of Revision Debate
      Jeffrey H. Anderson, United States Air Force Academy Overview: Scholars have long neglected the Constitutional Convention debate over a proposed council of revision - mentioning it often in passing but without exploring it in detail or without appreciating its full present-day relevance. In the midst of today's contentious disagreements about the proper limits of judicial power, it is crucial to examine the Supreme Court's present-day exercises of power in the light of the delegates' heretofore neglected debate.
    Federalism by Convenience: The Supreme Court on the Death Penalty and States' Rights Controversies
      David Niven, Florida Atlantic University Kenneth Miller, Arizona State University Overview: The Supreme Court's conservative leadership has sought to quell Court scrutiny of state Death Penalty laws and practices, reasoning that the states should be left to exercise their own judgment. The Court's embrace of states' rights, fundamental to its position on the Death Penalty, is noticeably absent in controversies in which deferring to the states would amount to deferring to a liberal agenda. We explore the implications of the Court's selective embrace of States' Rights.
    Culture Trumps Correlation: Understanding the Confounding Persistence of Law Myths
      Paul E. Parker, Truman State University Overview: This paper analyzes the persistence of three myths regarding law and courts despite academic evidence to the contrary. After substantiating the existence of myths of strict construction justices, a litigation crisis, and a rising crime rate that is deterred through harsher penalties, the academic evidence that undercuts each is discussed. Finally, I analyze the manners in which the myths are transmitted and the political functions they serve.
    Disc. Robert Bradley, Illinois State University William McLauchlan, Purdue University

Today at MPSA 4: Creating Constitutional Institutions This panel features constitutional theory star Keith Whittington:
    CREATING CONSTITUTIONAL INSTITUTIONS THUR 10:30 Chair Daniel Hoffman, Johnson C Smith University
    Coordination and Constitutional Change
      Randall Calvert, Washington University, St. Louis Overview: Uses the notion of coordination games to examine constitutional maintenance and constitutional change in the context of basic issues from the U.S. framing that, while partially resolved, continued to present constitutional ambiguities: the commerce clause; impeachments; state vs. federal powers; and foreign and military policy-making powers. Paper The Judicial Sanction of Executive Orders Graham G. Dodds, The Brookings Institution Overview: My paper examines why and how the judiciary endorsed the presidential power to issue executive orders. I examine the text and context of a series of nineteenth century cases through which the judiciary sanctioned the president’s ability to unilaterally make law, a power that presidents from then to now have utilized, with considerable political impact.
    National Power in the Theory of the Constitution: The Founding Era
      James R. Rogers, Texas A&M University Overview: This paper draws on historical sources and simple game theoretic models to demonstrate that, in recognizing the need to delegate additional power to the national government, the Constitution’s framers were responding to the pathologies created by a small set of identifiable incentive structures that prevented states from coordinating to achieve their common interests. Identifying these incentive structures identifies a coherent and parsimonious theory that underlies the scope of power delegated by the U.S. Constitution to the national government.
    The Politics of Articulation and the Reconstruction of Judicial Authority
      Keith E. Whittington, Princeton University Overview: This paper will examine the political supports for the activist exercise of judicial review in American politics and consider the ways in which national political leaders over the course of American history have encouraged the growth of the judicial authority to define constitutional meaning. The paper will show how even a "friendly" and "affiliated" judiciary can find opportunities to be constitutionally activist.
    Disc. Tom Keck, Syracuse University

Today at MPSA 3: The Supreme Court I was particularly interested in this session at MPSA.
    Paper Toward an Independent Measure of Supreme Court Ideology
      Corey A. Ditslear, University of North Texas Overview: Current measures of Supreme Court ideology suffer from either circularity insufficiency of nuance in measurement. I propose a new measure which relies on the opinions concerning the ideology of the justices from a survey of experts in the field. The survey is designed to gauge and compare the ideology opinions of experts in political science, and law schools, as well as in the field practitioners who are members of the Supreme Court Bar.
    A Spatial Model of Supreme Court Voting
      Kevin T. McGuire, University of North Carolina at Chapel Hill Charles E. Smith, University of Mississippi Gregory A. Caldeira, Northwestern University Overview: We challenge the conventional wisdom regarding how the Supreme Court makes decisions by proposing and testing a spatial model of voting on the Court. Our results strongly suggest that the justices make choices between two competing policy alternatives in ideological space. This finding leads us to question the results of most quantitative studies of the Court and to offer an alternative (and, we think, preferable) modeling strategy.
    Mechanism of Motivated Resoning? : A Look at the Seprabilty of Preferences in Legal Decision Making
      Eileen Braman, Ohio State University Overview: This study looks at the seprarability of preferences in cases involving multiple issues. In an experiment with law students I investigate whether decision-makers are able to separate their views on divisive policy matters fom a seemingly neutral “threshold” decision they are asked to make. Participants were given a mock legal brief containing identical legal arguments on both sides of a standing dispute. Subjects policy views were measured to test how they influenced the threshold decision.
    Disc. Jeffrey R. Lax, University of California, San Diego Chad M. King, University of Texas at Dallas

Today at MPSA 2: Political Liberalism Another interesting program at MPSA today:
    RAWLS AND POLITICAL LIBERALISM THUR 8:30 Chair Emily Gill, Bradley University
    Pluralism and Stability: The Case for "Political" Theory
      James M. Andresen, Arizona State University Overview: I will consider the arguments for and against doing political theory in a "political" manner. I argue that the argument for "political" theory faces a serious challenge that has thus far not been adequately dealt with. There appears to be no "political" argument available for doing "political" theory in the first place. Thus, I conclude that the "political" approach is one way of conducting political theory that is no more, or less, justified than various comprehensive approaches.
    Should Political Liberals Uphold Universal Values?
      Chad Cyrenne, University of Chicago Overview: What can political liberals say to so-called "reasonable non-liberals"? What kinds of language are likely to be persuasive in such circumstances? Do the normative foundations of a political liberalism preclude certain kinds of discourse? Do they provide an adequate vantage point for political and moral critique? This paper cuts at the heart of these questions by asking whether political liberals should uphold universal values. The argument is that they should not, because - at least as a matter of historical and empirical investigation - these values do not exist. What otherwise diverse communities do share, however, is a common set of political and social experiences - experiences belonging not to any one community in isolation, but rather to the accumulated historical records of many diverse societies. The crux of my argument will be to say that the relative attractions of a particular politics or society can be recognized not in the values those societies embody but in the practices of daily life. For that reason, political liberals needn't bother with universal values, but they should uphold universal practices.
    Reasonable Citizens Must Be Alienated People: The Implications of Rawls's Burdens of Judgment
      Alexander Moon, Cornell University Overview: Rawls's argument that recognition of the burdens of judgment ought to lead citizens not to refer to their comprehensive conceptions in political discourse either fails or leads to scepticism about comprehensive conceptions, one's own and others'. A better strategy is to ground anti-perfectionist conclusions on the presuppositions of political argument. The costs of this strategy are that it allows perfectionist reasons in political discourse and requires public discrediting of them in order to justify liberal practices.
    Rawls as a Critical Theorist: Reflective Equilibrium after the ‘Deliberative Turn’
      Ron Amit, Gustavus Adolphus College Overview: An interpretation of John Rawls’s ‘justice as fairness’ as a deliberative critical argumentative strategy for evaluating existing institutions is offered and its plausibility is discussed. It is argued that justice as fairness aims at synthesizing the moral values claimed by existing social institutions into a coherent model of a well ordered society in order to demand these institutions to stand up to the values that they promise. Understood in such way, justice as fairness provides a set of idealizing ‘mirrors’ through which power dynamics in society can be viewed, not as a model for an ideal society.
    Disc. David Thunder, University of Notre Dame Andrew Seligsohn, Hartwick College

Today at MPSA 1: Punishment Theory Among the interesting sessions at MPSA today, is this one on punishment:
    PUNISHMENT AND ITS JUSTIFICATION THUR 8:30 Chair Richard Dagger, Arizona State University
    Punishment and Democracy
      Albert W. Dzur, Bowling Green State University Rekha Mirchandani, Bowling Green State University Overview: Punishment is something democratic citizens must own up to in ways we rarely do. Civic participation in the criminal justice domain is part of what legitimate punishment requires. Yet mere populism, such as the penal activism behind three-strikes laws, should not be seen as legitimation. Only public procedures of justification that hold citizens accountable and subject our preferences to scrutiny and questioning can count as legitimation.
    A Utilitarian Critique of Minimum Sentencing Laws
      James T. McHugh, Roosevelt University Overview: Jeremy Bentham's book, "The Rationale of Punishment," which was constructed from separate manuscripts after his death and was last published in 1830, offers a utilitarian challenge to trends in penal law that undermine the principle of proportionality. This critique merits a reevaluation, especially due to the foundational influence that utilitarian thought has had upon American penal law and its constitutional underpinnings.
    Vindictive Justice: New York State's Four Strikes Law of 1926
      Khalil G. Muhammad, Vera Institute of Justice Overview: This paper examines the political and cultural context surrounding major criminal justice reform during the Prohibition era in New York State. Within six years of passing mandatory sentencing laws in 1926, the harshest of which resulted in a life sentence for a fourth felony offense, the New York State legislature “liberalized” the law, yielding to political and public pressure. Given the need for effective political mobilization against similarly hard-line crime policies today, this paper offers a case study from the past.
    Disc. Christopher H. Wellman, Georgia State University
To download the MPSA program, follow this link.

Welcome to the Blogosphere . . . to TaxProf Blog by Paul Caron of the University of Cincinnati College of Law.

Thursday Calendar
    At Boston University, Ken Simons is presenting States of Mind and Legal Responsibility. This should be very, very good.
    At the Penn Legal Theory Workshop Gopal Sreenivasan is presenting his paper, Duties and their Direction.
    At Georgetown's IP series, Arti K. Rai, Duke Law School, presents Open-Source Genomics and Biopharmaceutical Industry.
    At Michigan's law and economics series, Petra Moser, MIT, presents How Do Patent Laws Influence Innovation? Evidence from the Nineteenth-Century World Fairs.
    At George Mason, Nick Levin, Mayer, Brown, Rowe & Maw and GMU School of Law, presents The Nomos and Narrative of Matsushita.
    At UCLA's tax policy series, Joseph Hotz, UCLA Economics Department, presents The Effects of the EITC on the Employment of Low-Wage Populations: Are the Apparent Effects for Real?
    Today through April 18, the MPSA's 62nd Annual National Conference will be held at the Palmer House Hotel in Chicago.

Bar-Gill & Ben-Shahar on Credible Coercion Oren Bar-Gill and Omri Ben-Shahar (The Society of Fellows, Harvard University; The John M. Olin Center for Law, Economics and Business, Harvard Law School and University of Michigan Law School) have posted Credible Coercion on SSRN. Here is the abstract:
    The ideal of individual liberty and autonomy requires that society provide relief against coercion. In the law, this requirement is often translated into rules that operate post-coercion to undo the legal consequences of acts and promises extracted under duress. This Article argues that these ex-post anti-duress measures, rather than helping the coerced party, might in fact hurt her. When coercion is credible - when a credible threat to inflict an even worse outcome underlies the surrender of the coerced party - ex post relief will only induce the strong party to execute the threatened outcome, to the detriment of the coerced party. Anti-duress relief can be helpful to the coerced party only when the threat that led to her surrender was not credible, or when the making of threats can be deterred in the first place. The credibility methodology developed in this Article, descriptive in nature, is shown to be a prerequisite (or an important complement) to any normative theory of coercion. The Article explores the implications of credible coercion analysis for existing philosophical conceptions of coercion, and applies its lessons in different legal contexts, ranging from contractual duress and unconscionability to plea bargains and bankruptcy.

Christie on Marine Resource Management Donna R. Christie (Florida State University - College of Law) has posted Marine Living Resources Management: A Proposal for Integration of United States' Management Regimes (Environmental Law, Vol. 34, 2004) on SSRN. Here is the abstract:
    Recent recommendations by national ocean policy studies for an ecosystem-based approach to management of marine activities and resources across sectors is a laudable, but extremely controversial and perhaps ultimately overwhelming goal if not approached incrementally. Problems of conflict and inconsistency which exist not only between sectors, but also within sectors, must be resolved. This article considers an approach to resolving conflicts within the sector of living marine resources management that could provide an incremental step toward more comprehensive ecosystem-based management. This article first provides a comparative analysis of the management regimes of the Magnuson-Stevens Fishery Conservation and Management Act, the Endangered Species Act and the Marine Mammal Protection Act - the primary statutes governing the management of living marine resources. The article then proposes a framework for a comprehensive management regime for living marine resources incorporating an ecosystem-based approach.

Harcourt on Gay and Lesbian Free Zones Bernard E. Harcourt (University of Chicago - Law School) has posted You Are Entering a Gay- and Lesbian-Free Zone: On the Radical Dissents of Justice Scalia and Other (Post-) Queers (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
    The most renowned substantive criminal law decision of the October 2002 Term, Lawrence v. Texas, will go down in history as a critical turning point in criminal law debates over the proper scope of the penal sanction. For the first time in the history of American criminal law, the United States Supreme Court has declared that a supermajoritarian moral belief does not necessarily provide a rational basis for criminalizing conventionally deviant conduct. The court's ruling is the coup de grace to legal moralism administered after a prolonged, brutish, tedious, and debilitating struggle against liberal legalism in its various criminal law representations. As a matter of federal due process, courts reviewing penal legislation must now deploy some other principle to distinguish between permissible and impermissible majoritarian moral opprobrium. What that other principle will consist of is not clear. Justice Anthony Kennedy's opinion for the majority in Lawrence offers a dizzying array of possibilities - a rhetorical smorgasbord of legal authority. Justice Kennedy's pastiche is, at a legal theoretical level, incoherent and under normal circumstances - in many other cases - would be internally contradictory. The theoretical incoherence and rhetorical overkill of Justice Kennedy's opinion lends credence to Justice Antonin Scalia's incendiary dissent in Lawrence, specifically to the idea that the majority's holding is no technical knock-out victory for liberal legalism, but rather a politically or culturally partisan decision. What is missing from Justice Scalia's dissent, though, are the important nuances and subtleties that shape the contemporary sex wars, that make them so fascinating and so unpredictable, and that both resignify and ambiguate the purported gay victory in Lawrence. This Foreword probes the fragmentation of sexual projects in the West and its implications for the sex wars and the penal law. It is intended as a guide or manual for the interpretation of the result in Lawrence and future sex battles. Part I focuses on the fracturing of sexual projects and demonstrates that it is, today, far too simplistic - in fact profoundly counterproductive - to describe the culture wars as a two-party conflict or to talk about a "homosexual agenda." In the Lawrence litigation, this point was brought home in the surprising coalition opposing the Texas statute. The question this raises is: what kinds of fissures split the gay community? What would it sound like to argue from a gay-friendly perspective against the ruling in Lawrence? Part II explores this question and develops, through a pastiche of radical statements, a politics that embraces the marginal, even criminal desire to transgress for the sake of transgression, that thrives on rebellion against hegemonic legal regimes. With this in place, Part III reconstructs Scalia's radical dissent and sharpens it to produce a keener interpretive framework to understand the result in Lawrence and future sex wars. Scalia is right that there is a culture war and that the courts are inextricably involved in those wars. He is also right that the court is shaped by the legal profession and that their decisions are largely shaped by the law profession culture. This culture and the legal academy that reproduces it are by and large more tolerant of homosexuality than many other sectors of society. The decision in Lawrence is the product of this law profession culture, and, at least on the surface, is gay-friendly - it favors the interests of liberal pro-gay-rights advocates. But it does not necessarily promote the interests of all gay-friendly. It is here that the Foreword probes the Lawrence decision - dark side and all.

Edelman on Studying the Supreme Court Paul H. Edelman (Vanderbilt University School of Law) has posted The Dimension of the Supreme Court on SSRN. Here is the abstract:
    In a paper published in the Proceedings of the National Academy of Sciences, Lawrence Sirovich introduced two novel mathematical techniques to study patterns in recent Supreme Court decisions. One of these methods, information theory, has never been applied previously. The other method, singular value decomposition, is closely related to other methods that have previously been employed. In this paper I give an explication of these two methods and evaluate their use in the context of understanding the Supreme Court. I conclude that information theory holds some promise for furthering our understanding but singular value decomposition, as applied by Sirovich, is a less appropriate methodology.

Mann on Payments Policy in the Information AGe Ronald J. Mann (University of Texas at Austin - School of Law) has posted Making Sense of Payments Policy in the Information Age on SSRN. Here is the abstract:
    This is a substantially revised and focused version of Payments Policy in the Information Age (abstract id 214632). This essay in its new form explores how we should design a coherent payments policy, focusing on the incoherence of existing policy related to credit and debit cards. The central point of the essay is that previous analysis has failed to recognize the importance of the underlying transactions in which payments are made to issues ordinarily treated in the legal rules that regulate payment systems. Generally, I argue that issues of payments policy need to be separated into two categories: those for which determination of the appropriate rule is heavily influenced by the technology of the payments system; and those for which determination of the appropriate rule depends for the most part on the nature of the underlying transaction. Among other things, that suggests that issues of finality should be driven more by transactional considerations, while issues about unauthorized transactions should be driven more by the nature of the technology. To illustrate that framework in application, I turn in the remainder of the essay to the most rapidly growing payment systems in our economy, credit and debit cards. I generally argue that concerns about an imbalance of leverage between merchants and consumers justify broader inroads on finality of payment than existing law contemplates. At the same time, the essay emphasizes the importance of permitting different types of payments so that merchants and consumers can choose from a menu of payment options.

Ethics is Out The January 2005 issue of Ethics is out. It includes:And of course, the usual comprehensive selection of book reviews and notes. A subscription is required to download the articles.

Wednesday, April 14, 2004
Wednesday Calendar
    At Florida State, Keith Sharfman, Rutgers-Newark Law School (visiting professor at FSU), presents Suing Derivatively on Behalf of a Bankruptcy Estate.
    At Villanova, Jeffrey Rachlinski, Cornell Law School, presents A Behavioralist Critique of Law & Economics.
    At Vanderbilt's Law and Business Seminar Series, Lynn Stout is presenting.
    At NYU's legal history series, Hendrik Hartog, Professor of History, Princeton, is presenting.

Sunstein Values the Lives of the Poor Cass R. Sunstein (University of Chicago Law School) has posted Are Poor People Worth Less Than Rich People? Disaggregating the Value of Statistical Lives on SSRN. Here is the abstract:
    Each government agency uses a uniform figure to measure the value of a statistical life. This is a serious mistake. The very theory that underlies current practice calls for far more individuation of the relevant values. According to that theory, the value of statistical lives should vary across risks. More controversially, the value of a statistical life should vary across individuals - even or especially if the result would be to produce a lower number for some people than for others. One practical implication is that a higher value should be given to programs that reduce cancer risks. Should government use a higher VSL for programs that disproportionately benefit the wealthy - and lower VSL for programs that disproportionately benefit the poor? A serious complication here is that sometimes the beneficiaries of regulation pay only a fraction or even none of its cost; when this is so, the appropriate VSL for poor people might be higher, on distributional grounds, than market evidence suggests. An understanding of this point has implications for foundational issues about government regulation, including valuation of persons in poor and wealthy nations.
And here are two key paragraphs from early in the paper:
    Of course it is offensive and wrong to suggest that in principle, poor people are “worth less” than rich people. If poor people are subject to a risk of 1/10,000, they do not have less of a claim to public attention than if wealthy people are subject to the same risk; in fact they have a greater claim, if only because they lack the resources to reduce that risk on their own. But the topic here is regulation rather than subsidy, and the two ought not to be confused. In principle, government should not force people to buy protection against statistical risks at a price that seems to them excessive.24 Someone should not be required to pay $70 to reduce a risk of 1/100,000 if she is willing to pay no more than $50. The point bears on international issues as well as domestic ones. If a uniform VSL would benefit the poor, there is an argument for a uniform VSL. But regulation based on a uniform VSL may or may not produce a better distribution of income; in fact any redistribution may be perverse, and a single VSL might not promote equality at all. If wealthy people are the principal beneficiaries of a particular regulation chosen on the basis of a uniform VSL, and if the public as a whole pays for it, then any redistribution will benefit the wealthy, not the poor. And if poor people are forced to pay an amount for risk reduction that exceeds their WTP, desirable redistribution will hardly result; forced exchanges, on terms that people reject, are not a good way of redistributing wealth to the disadvantaged. On the other hand, it is possible that some regulatory programs, based on a uniform VSL, will help those in need, if their beneficiaries receive risk reduction for which they pay little or nothing—an issue to which I will devote considerable attention.
    A larger lesson follows. For purposes of law and politics, there is no sensible answer to the abstract question about the correct monetary value of human life. Any judgment about the appropriate VSL, and about individuation, must be heavily pragmatic; it must rest on the consequences of one or another choice. Whether government should use a higher or lower VSL across demographic lines cannot be answered simply. An important implication involves the assessment of VSL across nations. A poor nation would do well to adopt a lower VSL than a wealthy nation; for China or India, it would be disastrous to use a VSL equivalent to that of the United States or Can ada. But this point should not be taken to support the ludicrous proposition that for donor institutions, both public and private, risk reduction in a wealthy nation deserves more attention than equivalent risk reduction in a poor nation.
Another important and worthwhile paper from Sunstein. Download it while its hot!

Setear on Biology as International Destiny John K. Setear (University of Virginia School of Law) has posted Taking Both Biology and International Law Seriously: Evolutionary Biology, Neo-Realist Theories of International Relations, and the Promise(s) of International Law on SSRN. Here is the abstract:
    Borrowing from theories of evolutionary biology and natural selection, neo-realist theorists of international relations assert that states in the international system must either conduct rational, egoistic foreign policies or perish. This paper argues that these neo-realist arguments are misguided. Both logic and empirical evidence undermines the neo-realist claim that low rates of state "death" show high selection pressure in the international system. Furthermore, neo-realist arguments are inconsistent with theories of evolutionary biology concerned with small populations ("genetic drift"), with extinctions concentrated in space and time ("punctuated equilibrium"), and with the fittest mode of reproduction (sexual vs. asexual) in complex and interdependent environments. The shortcomings of neo-realist theories of international relations leave plenty of scope for international law as one method among many viable methods of international cooperation.

Sebok on the 9/11 Fund Anthony J. Sebok (Brooklyn Law School) has posted What's Law Got to Do With It? Duty, Tort Doctrine and the 9/11 Victims Compensation Fund (DePaul Law Review, Vol. 53, No. 901, 2003) on SSRN. Here is the abstract:
    This article, which was prepared for the 2003 Clifford Symposium at DePaul University School of Law, examines the doctrinal foundations of Congress's decision to create an alternative compensation plan for victims of the terrorist attack on September 11, 2001. According to the statements made by the drafters of the plan, the risk of tort litigation against the airlines by victims on the ground (especially in the World Trade Center) was so large that the financial solvency of the airlines seemed imperiled. This paper examines that assumption from the perspective of duty. It looks at the law of one state - New York - and analyzes structure of the duty of a defendant to protect another against the intentional wrongdoing of a third party. The article argues that, in New York at least, doctrine developed since Strauss v. Belle Realty Co. requires judges to take into account public policy concerns quite similar to those that motivated the U.S. Congress to preempt the common law. The article concludes with a consideration of whether, from the perspective of institutional competency, the Congress or judiciary are in a better position to circumscribe duty in a way faithful to the demands of tort law.

Mann on Global Credit Card Policy Ronald J. Mann (University of Texas at Austin - School of Law) has posted Credit Card Policy in a Globalized World on SSRN. Here is the abstract:
    This paper relies on data from countries around the world to present a comprehensive analysis of policy issues related to credit cards. The first part discusses the rise of credit cards and debit cards and how their uses differ from country to country. It closes with a framework for explaining why cards are more and less successful in different countries, focusing in large part on the ready availability of detailed consumer credit information. The second part considers the relation between credit card use and bankruptcy. Relying on a time series of data from the United States, Canada, Great Britain and Australia, the analysis shows that credit-card debt correlates positively with consumer bankruptcy, even when consumer credit is held constant. Thus, if a country's total consumer debt burden remains constant, but a portion of the debt shifts to credit cards, the data suggests that consumer bankruptcies will rise in the future. {The relationship is strongest with a one-year time lag.} The third part considers various policies related to credit card use. It criticizes the interchange restrictions being considered in Australia, the EU, and the UK, and recommends several changes to American law. The most important would be restrictions on marketing to minors and college students, restrictions on affinity programs that are tied to a consumer's decision not to repay their charges monthly, and requirements of enhanced disclosures at the point of sale.

Tuesday, April 13, 2004
Conference Announcement: BSET at Kent
    The BRITISH SOCIETY for ETHICAL THEORY 2004 CONFERENCE UNIVERSITY of KENT at CANTERBURY 12-14th JULY, 2004 Registration forms are now available for the above conference from the following: UKC website: Or contact the conference organiser, Dr. Simon Kirchin: Dr Simon Kirchin Philosophy Section SECL, Cornwallis Building, University of Kent, Canterbury, CT2 7NF, UK The general BSET website providing information about the society is here: BSET website: BSET is grateful to The Mind Association for its financial support. Speakers
      Elizabeth Ashford (University of St. Andrews): Severe Poverty as a Human Rights Violation Joseph Biehl (University College, Cork): Ethical Instrumentalism and Functional Normative Significance Justin D’Arms and Dan Jacobson (Ohio State and Bowling Green State Universities): Seeing by Feeling: Virtue Ethics and Moral Perception Allan Gibbard (University of Michigan, Ann Arbor): TBA Iwao Hirose (University College, Oxford): Intrapersonal Aggregation Brad Hooker (University of Reading): Fairness Antti Kauppinen (University of Helsinki): Kind Words and Cruel Facts Lawrence Lengbeyer (United States Naval Academy): Selflessness and Cognition Seiriol Morgan (University of Leeds): The Missing Formal Proof of Humanity’s Radical Evil in Kant’s Religion David Sobel (Bowling Green State University): Pain For Objectivists Samantha Vice (Rhodes University): On The Tedium of the Good

Leiter on Chicago Brian Leiter's status report on faculty recruitment and retention at the University of Chicago is here. His bottom line:
    I sometimes hear that people think I have a special pro-Chicago bias. In fact, I have no pro-Chicago bias, or animus: it just happens that on many of the measures of academic excellence I use Chicago does rather well. This is not my personal opinion, as it were, but a consequence of the criteria employed, to which I declared allegiance before knowing the results. My genuinely personal opinion is, of course, more complex. There's only one person on the Chicago faculty whose work I regularly read, for example, and that is Richard Posner. Chicago is relatively weak in what I, needless to say, consider to be the most important hallmark of a first-rate law school, namely, strength in law and philosophy. So, personally, I wouldn't rank Chicago 1st or 2nd or even 3rd, but allowing for its clear strengths in other important areas of legal scholarship, as well as the achievements of its graduates, I still think that ranking it 6th, as US News does, year-after-year, is not defensible.
Brian carefully prepares these opinions, whereas I only offer impressions. I am absolutely in agreement with Brian that that law and philosophy is one of the hallmarks of excellence in the legal academy. (I might define the category more broadly than Brian. I would say that Legal Theory [including philosophy of law both narrowly and broadly defined] is the key category.) And Brian is right that Chicago lacks a serious legal philosopher (Martha Nussbaum's primary interests are not in the philosophy of law), but in legal theory broadly defined Chicago has been a leader over the past two decades and is still very strong today, with Cass Sunstein, Eric Posner, and Adrian Vermeule among others in the front ranks of cutting-edge contemporary legal theory.
Update: Jacob Levy reminds me that Andrei Marmour was effectively 1/2 time at the Chicago law faculty until he moved to USC. Marmour provided Chicago with a strong presence in philosophy of law. Charles Larmore has picked up some of the slack, but Larmore is known more for his work in political and moral philosophy and is not a true philosophy of law specialist.

Tuesday Calendar
    At Chicago's law and economics series, Casey Mulligan, Economics, University of Chicago, and Andrei Shleifer, Whipple V. N. Jones Professor of Economics, Harvard University, present Population and Regulation. Here is the abstract:
      We present a model of efficient regulation along the lines of Demsetz (1967). In this model, setting up and running regulatory institutions takes a fixed cost, and therefore jurisdictions with larger populations affected by a given regulation are more likely to have them. Consistent with the model, we find that higher population U.S. states have more pages of legislation and adopt particular laws earlier in their history. We also find that specific types of regulation, including the regulation of entry, the regulation of labor, and the military draft are more extensive in countries with larger populations. Overall, the data show that population is an empirically important determinant of regulation.
    At Penn's PPE program, Thomas Pogge is presenting World Poverty: Explanations and Responsibilities. Pogge is extraordinary! Catch this if you can.
    At the University of Texas, Hans Baade, UTLaw, presents Transplants of Laws and Lawyers.
    At Vanderbilt, Ellen Smith Pryor, presents Integrating Lawyers and 'Real' Case Files into Upper Level Classes.

Karlan on Lawrence Pamela S. Karlan (Stanford Law School) has posted Loving Lawrence on SSRN. Here is the abstract:
    The Supreme Court's decision in Lawrence v. Texas, 539 U.S. - (2003), resembles its earlier decision in Loving v. Virginia, 388 U.S. 1 (1967), in several interesting ways. Loving marked the crystallization of strict scrutiny for racial classifications under the equal protection clause. At the same time, it represented a turning point, as the Court moved from the completed project of suspect-classification strict scrutiny to a new project of strict scrutiny for limitations on fundamental rights as a matter of substantive due process. Lawrence may mark a similar turning point. Forty years of case law has established that the substantive reach of liberty under the due process clause extends to the way individuals choose to conduct their intimate relationships. But just as Loving was a case about inequality that informed the jurisprudence of liberty, Lawrence is a case about liberty that has important implications for the jurisprudence of equality. In fact, liberty and equality are more intertwined in Lawrence than they were in Loving. Loving could have rested entirely on the unconstitutionality of racial subordination without looking at the importance of marriage; by contrast, Lawrence's discussion of liberty would be incoherent without some underlying principle of equality for gay people. The Warren Court often espoused substantive equal protection; the Lawrence Court attacked a suspect deprivation of liberty. Lawrence relates to Loving in another important way. Loving drew a clear distinction between rationality review and heightened scrutiny. Lawrence, by contrast, sidesteps this conventional doctrinal framework. Lawrence does to due process analysis something very similar to what the Court's previous gay-rights decision, Romer v. Evans, 517 U.S. 620 (1996), did to equal protection analysis: it undermines the traditional tiers of scrutiny altogether. Both Lawrence and Romer express an analogical crisis. Gay rights cases can't be steered readily onto either the due process/conduct or the equal protection/status track. Given the interdependence of equality and liberty values, what accounts for Lawrence's resistance to grounding the decision in the equal protection clause as well as the due process clause, the way the Loving did? The simplest explanation may be the Court's concern with the potential reach of an equal protection decision. Lurking only slightly under the surface in Lawrence was the question that Loving finally addressed after a decade's evasion by a cautious Court: what limitations does the Fourteenth Amendment impose on state decisions about who can marry whom? The Court may have thought that fundamental rights/due process-based strict scrutiny offers the possibility of incremental expansions of liberty while suspect classification/equal protection-based strict scrutiny seems far more binary. But the Court cannot ultimately avoid the issue by grounding gay rights decisions in liberty interests rather than in antisubordination concerns. Whatever else it may be, marriage is certainly a practice that defines many individuals' conceptions of their own existence. Thus, either the Court or the political process ultimately will have to resolve the question whether gay people's fundamental liberty interest in strengthening enduring personal bonds includes a right to invoke the state's assistance through the institution of marriage.

White on Asbestos Litigation Michelle J. White (University of California, San Diego) has posted Resolving the 'Elephantine Mass' (Regulation, Vol. 26, No. 2, pp. 48-54, Summer 2003) on SSRN. Here is the abstract:
    Is there a fair way for policymakers to free the American economy from the specter of never-ending asbestos litigation? Even though the number of cancer deaths attributed to asbestos exposure has been dropping since 1992, some 80 firms linked to asbestos production and use have gone bankrupt, and some $54 billion has been paid out in compensation to sufferers of various asbestos-related illnesses, the number of new asbestos-related claims has begun rising in recent years. Unlike other mass torts, asbestos litigation has no natural ending point because the number of plaintiffs and potential defendants is virtually unlimited - bankrupt asbestos manufacturers are replaced as defendants by firms that sold or installed asbestos-containing products, manufacturers whose products incorporated an asbestos-containing component, or owners of production facilities that had asbestos insulation in their buildings. Needless to say, this litigation and potential future litigation poses a severe threat to the U.S. economy. Is there a way to resolve all this litigation efficiently and, at the same time, fairly compensate plaintiffs and potential plaintiffs?

Sunding on Wetland Regulation Reform David Sunding (University of California, Berkeley - The Richard & Rhoda Goldman School of Public Policy) has posted An Opening for Meaningful Reform? (Regulation, Vol. 26, No. 2, pp. 30-35, Summer 2003) on SSRN. Here is the abstract:
    Forthcoming rules governing federal oversight of wetlands could produce more sensible environmental policy. This past January, in accordance with a 2001 Supreme Court ruling that limited federal regulatory authority over the nation's wetlands, the Army Corps of Engineers and the EPA published a proposed list of what wetlands are still under their joint jurisdiction. Given the proposed list, there can be no doubt that a significant change in federal regulation of wetlands is underway, and the change could lead to meaningful and innovative reform of wetlands policy.

Seidenfeld on the Penalty Default Canon Mark Seidenfeld (Florida State University College of Law) has posted Pyrrhic Political Penalties: Why the Public Would Lose Under the "Penalty Default Canon" (George Washington Law Review, Forthcoming) on SSRN. Here is the abstract:
    In their forthcoming article, "The Penalty Default Canon," Scott Baker and Kim Krawiec have proposed a provocative new formulation of the nondelegation doctrine that would have courts strike down statutory delegations motivated by Congress's desire to avoid responsibility for resolving policy disputes. Baker and Krawiec, skeptical of any method for evaluating the desirability of a policy outcome, posit that the outcome of the legislative process when Congress is not motivated by a desire to hide political responsibility is presumptively good. This response questions that presumption. Because of the insulation of courts and agencies from direct political pressure, and the deliberative capacity of those institutions, I conclude that they will reach outcomes preferable to those likely to come out of the legislature in those situations where Congress delegates to avoid political responsibility.

Monday, April 12, 2004
Madison Reviews Volokh Michael J. Madison (University of Pittsburgh School of Law) has posted The Lawyer as Legal Scholar (University of Pittsburgh Law Review, Vol. 65, No. 63, 2003) on SSRN. Here is the abstract:
    review Eugene Volokh's recent book, Academic Legal Writing. The book is nominally directed to law students and those who teach them (and for those audiences, it is outstanding), but it also contains a number of valuable lessons for published scholars. The book is more than a writing manual, however. I argue that Professor Volokh suggests implicitly that scholarship is underappreciated as a dimension of the legal profession. A well-trained lawyer, in other words, should have experience as a scholar. The argument sheds new light on ongoing discussions about the character of law schools.

Monday Calendar

Conference Announcement: Justifications and Excuses Rutgers-Camden School of Law, which has been developing close ties with the superstar laden Rutgers-New Brunswick philosophy department, has created a new Institute for Law and Philosophy. The Institute is putting on its first program, a conference on justifications and excuses, with luminaries like Larry Alexander, Michael Moore, and Stephen Morse from law and New Brunswick philosophers Jeff McMahan and Doug Husak. Congratulations to Kim Ferzan for putting this together!
    RUTGERS UNIVERSITY, SCHOOL OF LAW—CAMDEN INSTITUTE FOR LAW AND PHILOSOPHY CONFERENCE: JUSTIFICATIONS AND EXCUSES: LEGAL AND PHILOSOPHICAL ISSUES MAY 25-26, 2004 Paper presenters: Larry Alexander (USD), “Justifications: A Potpourri of Issues” Kimberly Kessler Ferzan (Rutgers-Camden), “The Epistemic Dimension of Self-Defense” Doug Husak (Rutgers, New Brunswick, Phil.), “The Priority of Justification to Excuse” Jeff McMahan (Rutgers, New Brunswick, Phil.), “Justification, Excuse and Liability” Michael Moore (Illinois), “Patrolling the Borders of Deontology and Consequentialist Justification: Teasing Out the Objects of the Categorical Prohibitions of Morality and Law” Stephen Morse (Penn), “Proving Mitigation” Commentators: Marcia Baron (Indiana, Phil.) Mitchell Berman (Texas) Tony Dillof (Wayne State) John Oberdiek (Rutgers-Camden) Paul Robinson (Penn) Ken Simons (BU) If you are interested in attending the conference, please contact Kim Ferzan (

Today at Stanford: Internet Governance
    The Stanford Law and Technology Association (SLATA) and The Center for Internet and Society (CIS) present Internet Governance by International Organizations: More Widespread than Understood with Mary Rundle CIS Non-residential Fellow Monday April 12, 2004 12:30 - 1:30 p.m. Room 80 (Moot Courtroom) Free and Open to all! Lunch Served Mary's talk on "Internet Governance by International Organizations" will survey Internet policymaking at the international level. She will aim to show that, while individual initiatives by separate intergovernmental organizations are considerable feats in and of themselves, what is more remarkable is the sum total of these initiatives, as they point to an emerging international governance framework for the Internet. About the Speaker Mary Rundle's background has allowed her to experience global integration from different perspectives. Living in diverse countries has shown her how legal systems can have dramatically different effects on the lives of individuals, while studies and work have taught her how business and intergovernmental relations shape these systems. Her examination of Internet governance by international organizations draws on this experience. Mary is presently a non-resident fellow with Stanford's Center for Internet and Society. She has previously held joint fellowship appointments at the Harvard Information Infrastructure Project, the Belfer Center for Science and International Affairs, and the Center for Business-Government Relations at Harvard University's Kennedy School of Government. Other experience includes several years as a Legal Affairs Officer for the World Trade Organization (WTO), where she analyzed members' domestic legislation and regional agreements vis-à-vis WTO rules and helped committees reach agreement on contentious issues. Mary earned a BA in Asian Studies from the University of Virginia, a JD from the Georgetown University Law Center, and an MS from the Georgetown University School of Foreign Service. She is a member of the New York bar and has lived in North America, Asia and Europe.

Conference Announcemnt: State of the Tax System
    2nd Annual State of the Tax System Forum Featuring: Eugene Steuerle, author of Contemporary U.S. Tax Policy (forthcoming from Urban Institute Press), Urban Institute senior fellow, and co-director of the Urban-Brookings Tax Policy Center With a panel of experts: Joseph Cordes, professor of economics, George Washington University Peter Gosselin, economics staff writer, Los Angeles Times (moderator) Nina Olson, national taxpayer advocate, Internal Revenue Service Ronald Pearlman, professor of law, director of graduate tax programs, Georgetown Law Center How did our tax system get to where it is now? Does disagreement over the design of an ideal system frustrate reform and open up the gates to anything and everything in tax legislation? How can we decide to rationalize the system in the midst of such conflicts? What are some practical steps? Contemporary U.S. Tax Policy examines developments of the past 25 years, how we got where we are today, and where we might be headed. Please join us for a thought-provoking discussion of the state of the tax system to mark the release of this important book. When: Monday, April 12, 2004 8:30 a.m. to 10:30 a.m. (registration and continental breakfast at 8:30) Where: Urban Institute Katharine Graham Conference Center 2100 M Street, NW, 5th floor Washington, DC RSVP: or 202-261-5627 The Tax Policy Center aims to clarify and analyze the nation's tax policy choices by providing timely and accessible facts, analyses, and commentary to policymakers, journalists, citizens and researchers. For more information about the Tax Policy Center, visit: or contact us at

Law and Culture at DeNovo DeNovo has another installment in their symposium series. Here are the first day's essays:

Sunday, April 11, 2004
Legal Theory Calendar
    Monday, April 12 Tuesday, April 13
      At Chicago's law and economics series, Casey Mulligan, Economics, University of Chicago, and Andrei Shleifer, Whipple V. N. Jones Professor of Economics, Harvard University, present Population and Regulation.
      At Penn's PPE program, Thomas Pogge is presenting World Poverty: Explanations and Responsibilities.
      At the University of Texas, Hans Baade, UTLaw, presents Transplants of Laws and Lawyers.
      At Vanderbilt, Ellen Smith Pryor, presents Integrating Lawyers and 'Real' Case Files into Upper Level Classes.
    Wednesday, April 14
      Keith Sharfman, Rutgers-Newark Law School (visiting professor at FSU), presents Suing Derivatively on Behalf of a Bankruptcy Estate.
      At Villanova, Jeffrey Rachlinski, Cornell Law School, presents A Behavioralist Critique of Law & Economics.
      At Vanderbilt's Law and Business Seminar Series, Lynn Stout is presenting.
      At NYU's legal history series, Hendrik Hartog, Professor of History, Princeton, is presenting.
    Thursday, April 15
      At Boston University, Ken Simons is presenting States of Mind and Legal Responsibility. This should be very, very good.
      At the Penn Legal Theory Workshop Gopal Sreenivasan is presenting his paper, Duties and their Direction.
      At Georgetown's IP series, Arti K. Rai, Duke Law School, presents Open-Source Genomics and Biopharmaceutical Industry.
      At Michigan's law and economics series, Petra Moser, MIT, presents How Do Patent Laws Influence Innovation? Evidence from the Nineteenth-Century World Fairs.
      At George Mason, Nick Levin, Mayer, Brown, Rowe & Maw and GMU School of Law, presents The Nomos and Narrative of Matsushita.
      At UCLA's tax policy series, Joseph Hotz, UCLA Economics Department, presents The Effects of the EITC on the Employment of Low-Wage Populations: Are the Apparent Effects for Real?
      Today through April 18, the MPSA's 62nd Annual National Conference will be held at the Palmer House Hotel in Chicago.
    Friday, April 16
      Today and tomorrow at the University of Chicago, with The University of Illinois at Chicago and Northwestern University, the Fifth Conference in Ancient Philosophy convenes. The title is Aristotle's Ethics, Politics, and Aesthetics.

Legal Theory Lexicon: Virtue Jurisprudence
    Introduction Law students with a background in philosophy are sure to notice the strong influence of moral philosophy on legal thinking. Theories like Kant's have had a profound influence on the idea of fairness in legal theory and on the conception of rights that is at the heart of deontological legal theory. Utilitarianism and the law reform agenda of Jeremy Bentham provide an important part of the normative version of law and economics. But if you recently studied moral philosophy as an undergraduate or in graduate school, you might notice that something is missing. The moral philosophy pie can be cut in many ways, but the conventional slicing divides normative moral theory into three kinds: (1) deontological moral theory, (2) consequential moral theory, and (3) virtue ethics. Recently, however, a variety of legal theorists have begun to consider the implications of aretaic (virtue-centered) moral theory for the law.
    This entry in the Legal Theory Lexicon series provides an introduction to "virtue jurisprudence." As always, the discussion is aimed at law students, especially first-year law students, with an interest in legal theory.
    Modern Moral Philosophy and Contemporary Legal Theory The Legal Theory Lexicon already includes entries on Utilitarianism and Deontology, two of the most influential approaches for moral philosophy. In an essay titled Modern Moral Philosophy, Elizabeth Anscombe famously noted persistent problems with the deontological and utilitarian approaches that dominated normative ethics when she wrote in 1958. Anscombe's suggestion was for moral philosophers to return to Aristotle, and that is just what happened. Starting in the 1960s and accelerating through the 1980s and 1990s, there was a trickle and then an avalanche of philosophical work on virtue ethics--an approach to moral theory that emphasizes character and the virtues--as opposed to right action (deontology) or good consequences (utilitarianism). A prior entry in the Legal Theory Lexicon provided an introduction to virtue ethics and you might want to review that before you continue with this post.
    Modern legal theory has strong connections with modern moral philosophy. Historically, the connection is evident in the work of Jeremy Bentham: his work combined a conceptual separation of law and morality with a utilitarian program of legal reform. Contemporary legal scholarship frequently invokes general moral theories, including preference-satisfaction utilitarianism and deontological theories like Kant’s, to make arguments about what the law should be. Such normative legal theories are addressed to lawmakers (in the broad sense), including legislators and adjudicators. Developments in political philosophy, sparked by John Rawls’s A Theory of Justice and its libertarian and communitarian critics, have met with avid attention from the legal academy.
    Virtue Ethics and Legal Theory There is, however, an exception to general reflection of developments in moral philosophy in legal theory. Legal philosophy (as practiced by philosophers or academic lawyers) has only recently paid attention to one of the most significant developments in moral theory in the second half of the twentieth century, the emergence of virtue ethics.
    An outpouring of articles and monographs attests to the interest of philosophers in virtue ethics. In the law, the situation has been different. The hegemony of deontological and utilitarian theories prevails, at least among legal theorists working in the common-law tradition. There are, however, a growing number of exceptions to this hegemony. Kyron Huygens (of Punishment Theory) and Stephen Bainbridge (of are just two of a growing number of legal scholars who have discussed virtue ethics in their work.
    Towards a Virtue Jurisprudence A full account of the implications of virtue ethics and epistemology for legal theory is a very large topic. Among the issues raised by virtue jurisprudence are the following:
    • Virtue ethics has implications for an account of the proper ends of legislation. If the aim of law is to make citizens virtuous (as opposed to maximizing utility or realizing a set of moral rights), what are the implications for the content of the laws?
    • Virtue ethics has implications for legal ethics. Current approaches to ethical lawyering emphasize deontological moral theory, i.e. duties to clients and respect for client autonomy, and these deontological approaches are reflected in the various codes of professional conduct that have been devised for lawyers, judges, and legislators. How can we reconceive legal ethics from a virtue-centered perspective?
    • Accounts of the virtue of justice (in particular, Aristotle’s and Aquinas’s theories of natural justice) have implications for debates between natural lawyers and legal positivists over the nature of law.
    In this Legal Theory Lexicon post, however, I will discuss only one aspect of virtue jurisprudence--a virtue-centered theory of judging in general and the virtue of justice in particular. Virtue-centered theories of judging answer the question: How should judges decide the controversies that are presented to them? A virtue-centered theory of judging provides an answer along the following lines: Judges should decide cases in accord with the virtues, or judges should render the decisions that would be made by a virtuous judge.
    A Virtue-Centered Theory of Judging How would a virtue-centered theory of judging go? Let’s begin with the uncontroversial idea that good judging is inconsistent with the worst judicial vices and that it requires some minimal set of judicial virtues.
      The Thin Theory of Judicial Vice Begin with the assumption that humans have characters. More particularly, let’s assume that humans have dispositional traits that incline them to behave in more or less predictable ways. Our vocabulary is rich with words to describe such traits. We use terms like “coward,” “procrastinator,” “reliable,” “hard-working,” “studious,” “curious,” “sensitive,” and so forth. Following Aristotle, let’s sort the traits, picking out those which we count as human excellences, “virtues,” and those which we count as defects, “vices.” Let’s set the virtues and any traits that are neutral to the side, and focus on the defects—traits like cowardice, gluttony, avariciousness, foolishness, and so forth.
      Are there judicial vices that are inconsistent with excellence in judging? Once asked, the question answers itself. Hardly anyone thinks that corruption and incompetence are consistent with excellence in judging.
      We can systematize the worst judicial vices, borrowing Aristotle’s distinction between intellectual and moral character traits. There are two important intellectual vices that are inconsistent with excellent judging. The first of these is judicial stupidity. Judges who suffer from this vice in its worst form lack the intelligence (and hence also the knowledge) necessary to do the complex intellectual work required of judges. They do not know what the rules of law are, and they are unable to see how they could be applied in particular fact situations. The second intellectual vice is judicial foolishness. Even a very smart judge can have terrible practical judgment. A foolish judge may know the law, but he cannot discern the difference between the rules that are important to the case and those that are only marginally relevant. Foolish judges are likely to make impractical demands are the lawyers and parties who appear before them.
      There are also moral vices that should are inconsistent with excellent adjudication. The most obvious of these is corruption. Judges should not accept bribes. Although judges are only infrequently in physical danger, they are more frequently faced with situations in which rendering the legally correct decision might injure their popularity, social standing, or opportunities for promotion or nonjudicial work. Hence we should not select civil cowards for judicial office. Judges are often placed in anger-inducing situations. A judge who is prone to fly off the handle at small provocations is not likely to be effective in the courtroom, and hence we ought not to select the hot-tempered for judicial office.
      What I have offered is a thin theory of judicial vice. This is a thin theory, because it rests on very weak assumptions about what counts as bad character. So far as I can see, no sensible normative account of judicial selection provides good reasons to reject the normative implications of the thin theory of judicial vice. No one wants stupid, foolish, corrupt, cowardly, or hot-tempered judges. Of course, these vices are not always apparent when candidates are nominated and confirmed for judicial office. There are, I am afraid, some judges on the bench today who possess the full range of these vices.
      The Thin Theory of Judicial Virtue The next step in our investigation of the judicial virtues is simple. If you accept the thin theory of judicial vice, you should also accept a thin theory of judicial virtues. Why? The basic reason is conceptual: virtue is required for the absence of vice. To select a judge who lacks the intellectual defect of judicial stupidity, you must select a candidate who has the corresponding virtue of judicial intelligence. To avoid, civic cowardice, you must select a judge with the virtue of civic courage. To avoid corruption, you must select a judge with the virtue of temperance. To avoid, ill temper, you must look for candidates who have judicial temperaments. A fully-developed virtue jurisprudence would flesh out this list of judicial virtues--specifying the character traits and mental abilities that make for good judging.
    A Preliminary List of the Judicial Virtues So let's make a tentative list of judicial virtues:
      Judicial Sobriety "Sober as a judge" is the say that expresses the idea that judges should have what was classically called the virtue of temperance. Good judging requires that one’s desires be in order. This is clear when the temperate judge is contrasted to the judge who lacks the ability to control her appetites. Judges who care too much for their own pleasures are prone to temptation; they are likely to be swayed from the course of reason and justice by the temptations of pleasure. A libertine judge may indulge in pleasures that interfere with the heavy deliberative demands of the office. Hence, the saying “sober as a judge,” reflects the popular understanding that excessive indulgence in hedonist pleasures would interfere with excellence in the judicial role.
      Judicial Courage A second virtue, judicial courage is a form of “civic courage.” The courageous judge is willing to risk career and reputation for the ends of justice.
      Judicial Temperament A third virtue, judicial temperament, corresponds to the vice of bad temper. The traditional concern in judicial selection with judicial temperament is illuminated by Aristotle's account of the virtue of good temper or proates: the disposition to anger that is proportionate to the provocation and the situation. The virtue of good temper requires that judges feel outrage on the right occasions for the right reasons and that they demonstrate their anger in an appropriate manner.
      Judicial Intelligence The corrective for the vices of judicial stupidity and ignorance is a form of sophia or theoretical wisdom. I shall use the phrase “judicial intelligence” to refer to excellence in understanding and theorizing about the law. A good judge must be learned in the law; she must have the ability to engage in sophisticated legal reasoning. Moreover, judges need the ability to grasp the facts of disputes that may involve particular disciplines such as accounting, finance, engineering, or chemistry. Of course, judicial intelligence is related to theoretical wisdom in general, but the two are not necessarily identical. The talents that produce theoretical wisdom in the law may be different from those that produce the analogous intellectual virtue in physics, philosophy, or microbiology. Or it may be that theoretical wisdom is the same for all these disciplines. If this is the case, then judicial intelligence may simply be general theoretical wisdom supplemented by the skills or knacks that produce fine legal thought combined with deep knowledge of the law.
      Judicial Wisdom The final virtue on my short list is the corrective for bad judgment or foolishness. I shall use the phrase “judicial wisdom” to refer to a judge’s possession of the virtue of phronesis or practical wisdom: the good judge must possess practical wisdom in her selection of the proper legal ends and means. Practical wisdom is the virtue that enables one to make good choices in particular circumstances. The person of practical wisdom knows which particular ends are worth pursuing and knows which means are best suited to achieve those ends. Judicial wisdom is simply the virtue of practical wisdom as applied to the choices that must be made by judges. The practically wise judge has developed excellence in knowing what goals to pursue in the particular case and excellence in choosing the means to accomplish those goals. In the literature of legal theory, Karl Llewellyn’s notion of “situation sense” captures much of the content of the notion that judicial wisdom corresponds to the intellectual virtue of phronesis.
      This abstract account of judicial wisdom can be made more concrete by considering the contrast between practical wisdom and theoretical wisdom in the judicial context. The judge who possesses theoretical wisdom is the master of legal theory, with the ability to engage in sophisticated legal reasoning and insight into subtle connections in legal doctrine. But even a judge who possesses judicial intelligence is not necessarily a reliably good judge, even if she employs the correct decision procedure in her judicial decision-making. Why not? An answer to this question begins by clarifying the distinction between judicial intelligence and judicial wisdom.
    Beyond a Thin Theory of Judicial Virtue A thin theory of judicial virtue should prove uncontroversial because it avoids the tough questions about judging. Formalists and realists, conservatives and liberals—all can endorse a thin theory of judicial virtue, because thin theories don’t answer hard questions. We can distinguish thin theories of judicial virtue from theories that are “thick.” A thick theory of judicial virtue expands the list of judicial excellences to include characteristics of mind and will that are controversial. Corresponding to any particular normative theory of judging we can postulate a thick theory of judicial virtue that specifies those dispositions and capacities that are required for excellent judging according to the criteria provided by the particular theory.
    An example may help. Consider Dworkin’s imaginary judge, Hercules, who decides cases by constructing the theory that fits and justifies the law as a whole; this task can only be accomplished by someone who is able to appreciate legal complexity and to see the subtle interconnections between various legal doctrines summarized in the slogan, “the law is a seamless web.” Moreover, Dworkin’s theory requires judges to have a special concern for the coherence of the law, a virtue we might call “judicial integrity.” But other normative theories of judging may not value this characteristic. For example, “judicial integrity” might not be important to an act-utilitarian theory of judging. Perhaps, the act-utilitarian would consider Hercules to be obsessed with consistency—the hobgoblin of a foolish mind.
    Instrumental and Virtue-Centered Theories Thick theories of judicial virtue may be divided in two kinds, instrumental and virtue-centered. Instrumental theories of judicial virtue are those which begin with some independent criteria for what constitutes a good judicial decision and then selects a list of judicial virtues based on those criteria. For example, many normative theories of judging are decision (or outcome) centered. A decision-centered theory offers criteria for what should count as a good, right, just, or legally valid decision. For a decision-centered theory of virtue, the notion of a correct decision is primary and the judicial virtues are derived from it. Thus, Dworkin’s description of Hercules begins with the criteria for good decisions and then constructs the ideal judge who is able to render such decisions. By way of contrast, a virtue-centered theory does not proceed in this way. Rather, a virtue-centered theory begins with the an account of the virtuous judges as primary and then proceed to derive the notion of a virtuous decision from it.
    A Virtue-Centered Theory So what would a virtue-centered theory look like? This is just a blog post, so I can only give you a brief outline. For the sake of simplicity and clarity, we can formulate a virtue-centered theory of judging in the form of five definitions:
    • A judicial virtue is a naturally possible disposition of mind or will that when present with the other judicial virtues reliably disposes its possessor to make just decisions. The judicial virtues include but are not limited to temperance, courage, good temper, intelligence, wisdom, and justice.
    • A virtuous judge is a judge who possesses the judicial virtues.
    • A virtuous decision is a decision made by a virtuous judge acting from the judicial virtues in the circumstances that are relevant to the decision.
    • A lawful decision is a decision that would be characteristically made by a virtuous judge in the circumstances that are relevant to the decision. The phrase “legally correct” is synonymous with the phrase “lawful” in this context.
    • A just decision is identical to a virtuous decision.
    The central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues.
    Conclusion Of course, this very short introduction raises many more questions than it answers. But I hope that even this very sketchy account of one aspect of virtue jurisprudence has sparked your interest. Some of the most interesting applications of virtue ethics to legal theory can be found in torts and criminal law, and we haven't even touched on those. Another very interesting set of questions arises from the notion that the aim of the law is to inculcate virtue--an idea that may be at odds with pluralist idea that morals is a matter of individual choice.

Saturday, April 10, 2004
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press page here) by Ran Hirschl (University of Toronto, Political Science). Here is a description:
    In countries and supranational entities around the globe, constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries. The constitutionalization of rights and the establishment of judicial review are widely believed to have benevolent and progressive origins, and significant redistributive, power-diffusing consequences. Ran Hirschl challenges this conventional wisdom. Drawing upon a comprehensive comparative inquiry into the political origins and legal consequences of the recent constitutional revolutions in Canada, Israel, New Zealand, and South Africa, Hirschl shows that the trend toward constitutionalization is hardly driven by politicians' genuine commitment to democracy, social justice, or universal rights. Rather, it is best understood as the product of a strategic interplay among hegemonic yet threatened political elites, influential economic stakeholders, and judicial leaders. This self-interested coalition of legal innovators determines the timing, extent, and nature of constitutional reforms. Hirschl demonstrates that whereas judicial empowerment through constitutionalization has a limited impact on advancing progressive notions of distributive justice, it has a transformative effect on political discourse. The global trend toward juristocracy, Hirschl argues, is part of a broader process whereby political and economic elites, while they profess support for democracy and sustained development, attempt to insulate policymaking from the vicissitudes of democratic politics.

Download of the Week This week, the download of the week is The Efficient Design of Option Contracts: Principles and Applications by Avery Katz. Here is the abstract:
    The law of contracts has often treated options quite differently from other contractual transactions; for example, the characterization of a transaction as an option contract calls forth specially required formalities, but on the other hand often has the effect of releasing parties from doctrinal limitations on their contractual freedom, such as the duty to mitigate damages or the rule that holds excessively high liquidated damages void as penalties. Such differential treatment is challenging to explain from a functional viewpoint, in part because all contracts resemble options to the extent they are enforceable in terms of monetary damages, and in part because contracts that are nominally structured as explicit options can be close economic substitutes for contracts that are nominally structured as unconditional. This essay sets out a theoretical account of the efficient design of option contracts - one that explains how contracting parties should strike the balance among option premium, option life, and exercise price, in order to maximize the expected surplus from their transaction. It shows that the tradeoffs between these various aspects of option contracts can affect the parties incentives to acquire and disclose information, to invest in relation-specific investments, and to take efficient precautions against the event of breach. It then goes on to develop an organizing framework for private parties choosing whether and how to structure their contractual arrangements as options, and for policymakers choosing whether or how to regulate such private choices. In short, the appropriate balance between option premium, option life, and exercise price will depend on the relative importance that the one attaches to these various dimensions of incentives.
Download it while its hot!

SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. Here are some of the categories of interest to legal theorists:

Friday, April 09, 2004
Friday Calendar
    At the University of Texas, Henry Hansmann, NYU, presents Legal Entities, Asset Partitioning, and the Evolution of Organizations.
    Also at the University of Texas, Julian Bond, NAACP, speaks in the Thurgood Marshall Distinquished Speaker Series on How Affirmative Action Affects Race Relations in this Country:Brown to Now.
    At SUNY Buffalo, Barry Boyer and Lynda Schneekloth, UB, presents Hydropower and Empowerment: Community Participation in Alternative Licensing Proceedings.

Thursday, April 08, 2004
Legal Theory Calendar
    At Boston University, Jeanne Schroeder (Cardozo) presents Envy and Outsider Trading: The Case of Martha Stewart.
    At Yale's Legal Theory Workshop, Tracy Meares (University of Chicago) presents "When Two or Three Come Together". Here is a taste:
      The title of this paper invokes the biblical text deliberately. The text can be found in the Gospel of Matthew: “For where two or three come together in my name, there am I with them.”1 In many versions of the Bible these words are written in red ink, an indication of the writer’s intention that they be recognized as the actual words of Jesus. The significance of these words here is that they were used by some participants to refer to a series of extraordinary undertakings on the West Side of Chicago by the police and hundreds of predominantly African American churches that began in May of 1997.
      Although these words were used by some participants as a particular kind of religious justification for their activities, these words have additional significance for at least three reasons: (1) They are an indication of the upside potential of building community capacity to resist crime and to complete other goals and projects of community residents; (2) They are a key to understanding why the invocation of religious text in the particular context that we will describe holds out the promise of changing the perceptions that community residents hold regarding the legitimacy of the local police in particular and of local government in general: (3) And finally, they suggest the potential downside to faith-based initiatives. That downside is this -- the very success of such programs may so depend on an overt demonstration of religiosity that the law and norms supporting the concept of separation of church and state are hopelessly transgressed.
    At Florida State, Lynn Baker, University of Texas School of Law, presents Federalism and the Spending Power.
    At Michigan's law and economics series, Alan Schwartz, Yale, presents A Normative Theory of Business Bankruptcy.
    At George Mason, James Swanson, the Heritage Foundation, presents Judicial Speech and the First Amendment.
    At UCLA's tax series, Ken Sokoloff & Eric Zolt, present Taxation & Inequality: Evidence from the Americas.
    At Stanford's Olin Series, Rob Daines (School of Law, New York University) presents Liquidity and Mandatory Disclosure:The Impact of the 1934 Securities Act.

Conference Announcement: Equality
    UK Association for Legal and Social Philosophy Annual Conference 2004 Monday 5 - Wednesday 7 July University of Wales, Newport (Caerleon Campus) EQUALITY ... and democracy ... and difference ... and freedom ... and the law ... and recognition ... and gender ... and citizenship ... and class ... and punishment ... and autonomy ... and community ... and meritocracy ... of what? Why 'equality', as a value, a claim or an aim? How best should we understand the term, its worth and its potential? How should it be applied in contemporary social, legal and other institutional practice? What does it presuppose, whether as an ideal or a concrete goal? In a world increasingly presented as being characterised by difference and plurality, does equality retain its normative force? This is the latest in a series of conferences exploring areas of intersection between debates in political, legal, ethical and social theory on issues of pressing contemporary concern. A number of subsidised places are available for postgraduate students and those without institutional support. Keynote speaker: Prof Anne Phillips (London School of Economics) Panel: 'Equality: From Theory to Action', with contributions by: Stuart White, Department of Politics and International Relations, University of Oxford Joanne Conaghan, Kent Law School, University of Kent Hartley Dean, Department of Social Policy, London School of Economics Jurgen De Wispelaere, Department of Equality Studies, University College Dublin and comments by John Baker, Department of Politics, University College Dublin Judy Walsh, Department of Equality Studies, University College Dublin Proposals for papers (abstract of 300-400 words) to be submitted by 30 April 2004 Booking by 28 May 2004 For further details or a booking form, or to submit a proposal, please contact: Dr Gideon Calder Centre for Applied Social and Philosophical Studies University of Wales, Newport PO Box 180, Newport NP20 5XR, UK Email: Further conference details at:

Book Announcement: Wolin on Intellectuals & Facism
    The Seduction of Unreason The Intellectual Romance with Fascism from Nietzsche to Postmodernism Richard Wolin To read the introduction, please visit: Fifteen years ago, revelations about the political misdeeds of Martin Heidegger and Paul de Man sent shock waves throughout European and North American intellectual circles. Ever since, postmodernism has been haunted by the specter of a compromised past. In this intellectual genealogy of the postmodern spirit, Richard Wolin shows that postmodernism's infatuation with fascism has been widespread and not incidental. He calls into question postmodernism's claim to have inherited the mantle of the left--and suggests that postmodern thought has long been smitten with the opposite end of the political spectrum. To read the entire book description, go to:

Bebchuk on Shareholder Access Lucian Arye Bebchuk (Harvard Law School) has posted Designing a Shareholder Access Rule on SSRN. Here is the abstract:
    This paper examines the specific features of the shareholder access rule recently proposed by the Securities and Exchange Commission. I suggest that, even accepting the Commission's generally cautious approach and its desire to limit shareholder access to cases where the need for it is evident, the restrictions included in the rule proposal are excessive and should be relaxed. In particular, I identify several changes in these restrictions that would contribute to attaining the policy goals that the proposed rule seeks to serve.

Dewhurst, Hamption, and Shiner on Delegation as a Source of Law Dale Dewhurst , David Hampton and Roger A. Shiner (University of Alberta , Independent and Okanagan University College) have posted Delegation as a Source of Law (Ratio Juris, Vol. 16, pp. 56-88, March 2003). Here is the abstract:
    The status of delegation as a strictly institutionalized source of law is controversial. In this article, we examine some instances of delegation, in order to explore their claim to be independent and strictly institutionalized sources of law. We consider primarily the instances of labour arbitration and of mediation. Our conclusion is that there is no straightforward answer in either instance to the question whether they constitute sources of law, although the claim of arbitration is strong and that of mediation is weak. We argue that the controversial character of delegation as a source of law is therefore to be expected, given its ambivalent character, and that in exploring the reasons for this ambivalence much can be learnt about the concept of a strictly institutionalized source of law.

Nelson on Auditing Mark W. Nelson (Cornell University - Samuel Curtis Johnson Graduate School of Management) has posted A Review of Experimental and Archival Conflicts-of-interest Research in Auditing on SSRN. Here is the abstract:
    I review empirical (archival and experimental) accounting research that has addressed the issue of conflicts of interest, focusing on the audit setting that has received so much recent attention. I start with a brief discussion of the audit function and auditors' incentives, viewing auditors as weighing incentives that favor acceding to client demands against incentives that favor resisting client demands, and as also influenced by psychological and social aspects of audit settings. Then I discuss various different research approaches to investigating conflicts of interest in this setting. The review is not intended to be exhaustive. Rather, I highlight key strengths and weaknesses of each approach and illustrate each approach with a representative study. I also discuss the main insights provided by each approach. I finish by relating the insights provided by different approaches and suggesting some directions for future research.

Wednesday, April 07, 2004
Mortenson on Retributivism and Execution Julian Davis Mortenson has posted Earning the Right to be Retributive: Execution Methods, Culpability Theory, and the Cruel and Unusual Punishment Clause (Iowa Law Review, Vol. 88, No. 1099, 2003) on SSRN. Here is the abstract:
    In this article, I argue that basic principles of tort and criminal doctrine compel the conclusion that botched executions performed under current execution protocols violate the Eight Amendment. Traditionally, Cruel and Unusual Punishment Clause analysis of execution methods has focused on a detailed factual recitation of evidence about their effect on the condemned. After canvassing this research, I focus instead on a more complicated theoretical problem - the question of how to assess the state's culpability for a concededly bad outcome that it caused but (arguably) did not specifically intend. In particular, I draw and expand on the growing body of scholarship dealing with the complex relationship between actions and mental states, and between probabilistic outcomes and moral culpability. By acknowledging and directly addressing this vexing problem, I provide a more analytically rigorous Eighth Amendment framework than has previously been applied in the death penalty context, challenge traditional defenses of painful executions at a theoretical rather than visceral level, and leave little room to argue that painful executions are immunized from Eighth Amendment review. I conclude by proposing a remedial structure for responding to this ongoing string of constitutional violations. While acknowledging that few courts are likely to enjoin most modern execution methods, I suggest that a liability rule may present a more realistic alternative. Within the practical political confines of contemporary criminal justice, it offers perhaps the best chance for the right to a non-cruel execution to be vindicated by the formal legal ritual of constitutional challenge and social contrition.

Gervais on Standard Internet Licensing Terms Daniel J. Gervais (University of Ottawa - Common Law) has posted Standard Internet Licensing Terms on SSRN. Here is the abstract:
    When material is available on the Internet, and assuming such material was posted by the rightsholder or with the rightsholder's authorization, then the rightsholder does not wish to prevent any use of the material. At the very least, the rightsholder is prepared to allow users to browse the material. Many rightsholders would be prepared to allow further use of the material, sometimes depending on the type of use and/or user concerned That is where, by and large, copyright has not been able to respond adequately. It has led to the formation of rights mazes. Users wishing to reuse material posted or otherwise made available on the Internet must try to find and then decipher complex copyright terms and conditions, some of which are written by perhaps overzealous lawyers and run several pages long . A user may find such terms too labyrinthine and complex and, as a result, abandon his/her efforts. If those terms and conditions are not readily available, then the user may take the risk of using what in certain jurisdictions courts have called an implied license, but this is perilous at best and offers very little in terms of predictability. As a result of the above, millions of Internet users who would want to reuse material publicly available on the Internet cannot do so legally. They may then feel that copyright is an obstacle, while in fact the rightsholder would have been ready to authorize such use, but there was no easy way to do so. Or they may decide to use the material without proper authorization, and this tends to reduce respect for copyright and the rule of law on the Internet. This paper argues that by and large material available on the Intrnet belongs to one of four categories: free, free with restrictions, requiring a license, or not authorized beyond fair use. It then proposed to standardize copyright terms & conditions by using recognizable symbols and links to operationalize each standard set of terms.

Katz on Option Contract Design Avery Wiener Katz (Columbia Law School) has posted The Efficient Design of Option Contracts: Principles and Applications on SSRN. Here is the abstract:
    The law of contracts has often treated options quite differently from other contractual transactions; for example, the characterization of a transaction as an option contract calls forth specially required formalities, but on the other hand often has the effect of releasing parties from doctrinal limitations on their contractual freedom, such as the duty to mitigate damages or the rule that holds excessively high liquidated damages void as penalties. Such differential treatment is challenging to explain from a functional viewpoint, in part because all contracts resemble options to the extent they are enforceable in terms of monetary damages, and in part because contracts that are nominally structured as explicit options can be close economic substitutes for contracts that are nominally structured as unconditional. This essay sets out a theoretical account of the efficient design of option contracts - one that explains how contracting parties should strike the balance among option premium, option life, and exercise price, in order to maximize the expected surplus from their transaction. It shows that the tradeoffs between these various aspects of option contracts can affect the parties incentives to acquire and disclose information, to invest in relation-specific investments, and to take efficient precautions against the event of breach. It then goes on to develop an organizing framework for private parties choosing whether and how to structure their contractual arrangements as options, and for policymakers choosing whether or how to regulate such private choices. In short, the appropriate balance between option premium, option life, and exercise price will depend on the relative importance that the one attaches to these various dimensions of incentives.

Bell and Parchomovsky on Property Abraham Bell and Gideon Parchomovsky (Bar-Ilan University - Faculty of Law and University of Pennsylvania Law School) have posted What Property Is on SSRN. Here is the abstract:
    Property law has eluded both a consistent definition and a unified conceptual framework. Instrumentalists insist that property is nothing more than default contract rules. Conceptualists proclaim the primacy of in rem conceptualization and of specially privileged rights such as the rights to exclude. Others think of property as an infinitely malleable bundle of sticks. We demonstrate that any comprehensive property theory must address four legal questions: (1) What things are protected by property law; (2) vis-a-vis whom; (3) with what rights; and (4) enforced by what mechanism. Then, we introduce a value-oriented theory to show how property law answers these questions by recognizing and helping to create stable relationships between persons and assets, allowing owners to extract otherwise unavailable utility. Our approach illuminates recent property developments, and demonstrates the need for reform. Additionally, we demonstrate the need for property occasionally to yield to other legal fields like secured transactions.

Golan v. Ashcroft Check out the Packets squib of the latest District Court ruling in Golan v. Ashcroft, the suit challenging the retroactive restoration of copyright to foreign works that fell out of copyright for failure to comply with the U.S. formalities. Here's a short excerpt:
    Count 1 alleged that § 514 of the URAA violates the Copyright and Patent Clause, because “Congress may not authorize the issuance of patens whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.” Graham v. John Deere Co., 383 U.S. 1, 6 (1966). In response, the government argued that Congress has the power to restore protection to public domain works pursuant to McClurg v. Kingland, 42 U.S. 202 (1843). However, the court found that McClurg could be distinguished from the present case because it only upheld the protection of an existing patent, rather than give a patent to an invention that was already in the public domain. Plaintiffs also asserted that there is no clear history for the restoration of copyrights in the public domain to support government’s allegation that § 514 of the URAA is a valid exercise of Congress’s power under the Copyright and Patent Clause.

Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
    Introduction The Saturday before last, Legal Theory Bookworm recommended Larry Lessig's new book Free Culture, which can be downloaded for free from Lessig's site (also available in hardcopy from Amazon and Barnes & Noble). You can also listen to Free Culture as a streaming audiobook, by following this link.
    This is the eighth and final post on Lessig's book--a sort of blogospheric book club. If you haven't been reading along, you can navigate back to the first posts using the links at the top and bottom of each of the eight posts.
    Conclusion The conclusion of Free Culture begins with the story of AIDS drugs and patent. Enforcing patents on AIDS drugs makes them effectively unavailable in the third world. Hence, it is argued that third-world nations should either suspend these patents or regulate prices. Of course, AIDS is a human tragedy, and a solution to the problem of pricing must be found. But it simply was not clear to me that this story really connects with the the themes of "Free Culture." the AIDS-drug patent problem is an intellectual property problem, but is is not a Free Culture problem. Frankly, I think Lessig lost momentum by using this example. Lessig then shifts to a new story--this one about the cancellation of the proposed World Intellectual Property Organization (WIPO) conference on public goods that would have included discussion of open source software. Once again, Lessig is right that U.S. pressure (or Microsoft) pressure to cancel the conference was not in the public interest, but again this is only tangentially a story about Free Culture.
    When I reached the end of the conclusion, I was quite disappointed. Chapter Ten of Free Culture was so good. I was primed for a solution--for some way out of the terrible problems created by the relentless expansion of copyright at the expense of the public domain (and the public interest). But wait, the afterword is still to come!
    Afterword I don't know why Lessig reserved his positive program for the "Afterword" of Free Culture, but he did. His vision of the future begins with the model offered by the open-source software movement:
      [I]n 1984, [Richard] Stallman began a project to build a free operating system, so that at least a strain of free software would survive. That was the birth of the GNU project, into which Linus Torvalds?s ?Linux? kernel was added to produce the GNU/Linux operating system.
      Stallman?s technique was to use copyright law to build a world of software that must be kept free. Software licensed under the Free Software Foundation?s GPL cannot be modified and distributed unless the source code for that software is made available as well. Thus, anyone building upon GPL?d software would have to make their buildings free as well. This would assure, Stallman believed, that an ecology of code would develop that remained free for others to build upon. His fundamental goal was freedom; innovative creative code was a byproduct.
      Stallman was thus doing for software what privacy advocates now do for privacy. He was seeking a way to rebuild a kind of freedom that was taken for granted before. Through the affirmative use of licenses that bind copyrighted code, Stallman was affirmatively reclaiming a space where free software would survive. He was actively protecting what before had been passively guaranteed.
    The open-software movement is the model for Lessig's Creative Commons:
      The same strategy could be applied to culture, as a response to the increasing control effected through law and technology.
      Enter the Creative Commons. The Creative Commons is a nonprofit corporation established in Massachusetts, but with its home at Stanford University. Its aim is to build a layer of reasonable copyright on top of the extremes that now reign. It does this by making it easy for people to build upon other people?s work, by making it simple for creators to express the freedom for others to take and build upon their work. Simple tags, tied to human-readable descriptions, tied to bulletproof licenses, make this possible.
    Well, I'm sure you are asking the obvious question, why will for-profit publishers, the recording industry, and the motion picture industry give away their product? Well, Lessig has an answer:
      Why would creators participate in giving up total control? Some participate to better spread their content. Cory Doctorow, for example, is a science fiction author. His first novel, Down and Out in the Magic Kingdom, was released on-line and for free, under a Creative Commons license, on the same day that it went on sale in bookstores.
      Why would a publisher ever agree to this? I suspect his publisher reasoned like this: There are two groups of people out there: (1) those who will buy Cory?s book whether or not it?s on the Internet, and (2) those who may never hear of Cory?s book, if it isn?t made available for free on the Internet. Some part of (1) will download Cory?s book instead of buying it. Call them bad-(1)s. Some part of (2) will download Cory?s book, like it, and then decide to buy it. Call them (2)-goods. If there are more (2)-goods than bad-(1)s, the strategy of releasing Cory?s book free on-line will probably increase sales of Cory?s book.
      Indeed, the experience of his publisher clearly supports that conclusion. The book?s first printing was exhausted months before the publisher had expected. This first novel of a science fiction author was a total success.
    Of course, this is merely anecdotal evidence. And there are good reasons to believe that Cory Doctorow's experience might be atypical. One reason is the novely effect. Doctorow is doing something new and different that got him free publicity, but if everyone did the same thing, it would become routine, and there wouldn't be a publicity effect. But there are also reasons to believe that Lessig is right.
    The third installment of the Legal Theory Bookclub on Free Culture mentioned a Washington Post article which reported some very interesting research by Strumpf and Oberholzer (economists at Harvard and the University of North Carolina). John Eden emailed me a link to the actual study. Here is an abstract:
      A longstanding economic question is the appropriate level of protection for intellectual property. The Internet has drastically lowered the cost of copying information goods and provides a natural crucible to assess the implications of reduced protection. We consider the specific case of file sharing and its effect on the legal sales of music. A dataset containing 0.01% of the world's downloads is matched to U.S. sales data for a large number of albums. To establish causality, downloads are instrumented using technical features related to file sharing, such as network congestion or song length, as well as international school holidays. Downloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates. Moreover, these estimates are of moderate economic significance and are inconsistent with claims that file sharing is the primary reason for the recent decline in music sales.
    Download this now!
    The core idea is quite simple. Demand for music is elastic. Price goes up; demand goes down. Consumption of music has increased massively because of P2P filesharing. The net effect, Strumpf and Oberholzer argue, is slight increase in the sale of recorded music. Some people switch from CDs to free downloads, but slightly more sample and then purchase. And millions and millions benefit from free downloads.
    Of course, this study may eventually be discredited or superceded. And video or print may be different than recorded music. The point is that the economics are not yet clear; the market itself may cause the content industry to reverse its stand on P2P.

    Back to the Formalities The first half of Lessig's solution can be implemented by individuals and will be implemented if the market incentives are just right. The second half of his solution is the restoration of copyright formalities, i.e., registration, notice, and renewal. And of course, the system of formalities post-Internet can give us more and better for less. The copyright notice can provide a key to an online registration system. Online registration and renewal will be less expensive. And the online registration system will permit rapid resolution of the question whether a particular work is in the public domain and, if it isn't, who the owner is. Once such a system were established, we would expect that a whole secondary industry would be established that would take a commission for processing various transactions (e.g. licensing of various uses of copyrighted works).
    Lessig makes a variety of other proposals, including importantly, shorter copyright terms. How long should copyright terms be? I suspect that the optimal term is very short indeed--perhaps as short as five years. It is almost inconceivable that the optimal term is longer than the 20 year term for patents.
    Lessig also proposes some kind of mandatory licensing scheme for content that is no longer "in print." And what about the P2P problem. Lessign endorses the kind of scheme suggested in various forms by William Fisher, Neil Netanel, and others:
      The idea would be a modification of a proposal that has been floated by Harvard law professor William Fisher.9 Fisher suggests a very clever way around the current impasse of the Internet. Under his plan, all content capable of digital transmission would (1) be marked with a digital watermark (don?t worry about how easy it is to evade these marks; as you?ll see, there?s no incentive to evade them). Once the content is marked, then entrepreneurs would develop (2) systems to monitor how many items of each content were distributed. On the basis of those numbers, then (3) artists would be compensated. The compensation would be paid for by (4) an appropriate tax.
    Lessig believes that eventually this system would fade away, replaced by some form of the iTunes model, with prices driven down by competition. Why use iTunes when P2P is free? Because iTunes is easier to use. And if prices go down--to 50 cents or 25 cents or even 10 cents per song--then the incentive to use the for-pay systems rather than P2P will grow.
    In this regard, it is very important to remember that price competition does work for copyrighted works. If the latest CD by the most popular group cost too much (in the days before P2P), consumes would simply purchase another CD. In the new world of for-pay online music, there will be price competition, because there is substantial cross-elasticity of demand between and among various musical recordings.
    Exhaustion Well, I should have know when I started that exhaustion would set in by the time I got to the end of this first installment of the Legal Theory Bookclub. I hope you've enjoyed the experiment. I know I did. I think Lessig has written an important book; it is certainly a very fine read.
    I have some complaints. Lessig tells lots of stories, but makes few sustained arguments. He has lots of proposals, but they come at the very end of the book and they are underdeveloped. Some themes from early in the book seem to disappear towards the end. I hope that Lessig will work up a more scholarly and analytic version of the central ideas in Free Culture. But despite these complaints, I am very glad that I read Lessig's new book. It is exciting, creative, and moving--qualities that are almost vanishingly rare in writing by academics.
    The Schedule

Wednesday Calendar
    At NYU's legal history series, Sally Gordon, Professor of Law, University of Pennsylvania, presents The Almighty and the Dollar .
    At Australian National University's RSSS, Janet Hope, RSSS, presents Open Source Biotechnology.

Justice Stevens at San Diego Today The Honorable John Paul Stevens, Associate Justice of the Supreme Court of the United States, will deliver the 20th Lecture in the Nathaniel L. Nathanson Memorial Lecture Series today at 5:30 p.m. on the USD Campus.

Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
    Introduction The Saturday before last, Legal Theory Bookworm recommended Larry Lessig's new book Free Culture, which can be downloaded for free from Lessig's site (also available in hardcopy from Amazon and Barnes & Noble).
    This is the seventh of eight posts on Lessig's book--a sort of blogospheric book club. You are invited to read along, and to send your comments on the book, my posts, or on the comments of other readers. I am posting this one day late (please forgive me), but back dating it so that readers can find it on the day it was supposed to be posted.
    Eldred Chapter Thirteen of "Free Culture" is entitled "Eldred," and just the title is exciting. Lessig argued Eldred v. Ashcroft in the Supreme Court. He lost, but I certainly want to know about his take on the case. Eldred was about the Copyright Term Extension Act, the eleventh extension of copyright terms in forty years. Because of the CTEA, virtually no works will pass into the public domain until the year 2019.
    That's because when Congress extends copyright terms it usually does it both prospectively and retroactively--to works that are already in existence. Since Congress has done this multiple times, an argument can be made that Congress has violated the constitutional requirement that copyright terms be for "limited times." Here is how Lessig puts the point:
      If every time a copyright is about to expire, Congress has the power to extend its term, then Congress can achieve what the Constitution plainly forbids—perpetual terms “on the installment plan,” as Professor Peter Jaszi so nicely put it.
    Lessig then puts a spin on the argument that was not included in his brief to the Supreme Court. He argues that the CTEA was the result of corruption, i.e. that campaign contributions were the key force that produced retroactive copyright extensions.
    Lessig then turns back the clock and takes us inside the reasoning that led him to argue Eldred as he did. Lessig believed that the Rehnquist Court might well strike the CTEA down. His reasoning was based in part on the so-called new federalism cases (Lopez and Morrision) in which the court struck down the Gun Free School Zones Act and the Violence Against Women Act on the basis that these statutes exceeded Congress's power under the commerce clause of the Constitution.
    And there certainly was a connection between the issue in Eldred and the other new federalism cases, but there were differences as well. When the Supreme Court struck down the federal statutes at issue in Lopez and Morrison states were free to fill in the gap, but the states would not have been free to act in the "gap" left open if Lessig had persuased the Court in Eldred. States could not have extended terms, either prospectively or retrospectively. The New Federalism cases are about limiting Congressional power, but they are also about state power. In other words, there are principled distinctions between the New Federalism cases and Eldred.
    Lessig then makes a very important point about the commercial value and the public domain. Retroactive copyright extension applies to all works, whether they are being exploited commercially or not. Most of the works that would now be entering the public domain have no commercial value. In fact, that's a massive understatement. Only a tiny fraction of the works that are covered by the CTEA have any commercial value at all. Almost all of the films, novels, magazines, newspapers, sound recordings, etc., etc., from the twenties are entirely dormant. Indeed, many of these properties now have fragmented or lost ownership. But the CTEA effectively prevents these commercially worthless works from being digitalized and stored for posterity. Lessig doesn't use this phrase, but I will. This is a crime against human culture. It is shocking and even evil.
    Lessig then turns to the story of the Eldred litigation. How the arguments were framed, what strategic and tactical choices were made, and how he now views those choices. If you are interested in copyright, this is must reading. I won't summarize it here, but I will say that it was utterly gripping and compelling.
    Lessig then gets to the great obstacle to his challenge to retroactive extensions of copyright--historical practice. Here is how he puts it:
      The argument on the government’s side came down to this: Congress has done it before. It should be allowed to do it again. The government claimed that from the very beginning, Congress has been extending the term of existing copyrights. So, the government argued, the Court should not now say that practice is unconstitutional.
      There was some truth to the government’s claim, but not much. We certainly agreed that Congress had extended existing terms in 1831 and in 1909. And of course, in 1962, Congress began extending existing terms regularly—eleven times in forty years.
      But this “consistency” should be kept in perspective. Congress extended existing terms once in the first hundred years of the Republic. It then extended existing terms once again in the next fifty. Those rare extensions are in contrast to the now regular practice of extending existing terms.Whatever restraint Congress had had in the past, that restraint was now gone. Congress was now in a cycle of extensions; there was no reason to expect that cycle would end. This Court had not hesitated to intervene where Congress was in a similar cycle of extension. There was no reason it couldn’t intervene here.
    I think that Lessig underestimated the power of the historical practice argument. The role of precedent and practice in constitutional theory is much dispute. Some believe that historical practice is of virtually no relevance to constitutional meaning. "We must do what the Constitution says--it is argued--and the fact that the Constitution has been violated for a very long time is no excuse for continuing violations." Intellectually, that is a powerful position. Of course, many constitutional theorists disregard historical practice for a quite different reason. If you are a constitutional progressive and believe that the living constitution should be an instrument for the promotion of social progress, then you won't care much for historical practice. But the Supreme Court does care about historical practice. Given that retroactive extensions have been around for more than 170 years, the Court would be very unlikely to strike them down, so long as the Constitution could be reasonably construed to permit them. And Lessig's problem was that the Constitution could be construed to permit retroactive extensions--so long as there is some enforceable upper limit beyond which Congress cannot go, retroactive extensions are consistent with the notion of "limited times." And Lessig quite deliberately chose not to argue that Congress had exceeded the upper limit on limited times in the CTEA. I think Lessig's litigation strategy was brilliant, and I think he had a chance to win. But in retrospect, I think the focus on retroactivity and the short shrift given to historical practice was a mistake.
    Lessig had another option available to him. He could have argued that Congress had done something unprecedented, it had, for the very first time, exceeded the constitutional requirement that copyright be granted for limited times. But isn't 120 years or author's life plus 70 year's a "limited time"? I don't think so. I believe that the phrase "limited times" must be interpreted in context, e.g. the context of granting rights to authors. Authors are humans; they live for decades, not centuries. Terms that are in excess of the longest human lives are not "limited terms" in this context.
    The rest of Chapter Thirteen recounts the immediate aftermath of Eldred and Lessig's intense satisfaction with the decsion--who can blame him. I found these passages quite interesting, but they are written (quite naturally) from the perspective of a losing advocate. Eldred was a poorly written opinion, but it had an internal logic that Lessig does not capture. This unlucky chapter draws to a close on a depressed note.
    Eldred II Chapter Fourteen is titled "Eldred II." It begins with Lessig's idea to require a $1 registration fee to continue a copyright after 50 years. This is a terrific idea, although it doesn't go far enough. First, the initial period is much too long. Reregistration should be required periodically--perhaps as frequently as every ten years starting ten years after the initial registration and the fee should be nontrivial (perhaps $100 indexed for inflation in $25 increments).
    Lessig's proposal got quite a bit of attention, but the MPAA squashed it like a bug. The MPAA offered a variety of reasons for their opposition to the reregistration requirement, but the real reason is quite simple. Inevitably, someone will screw up and a valuable motion picture would have passed into the public domain when the 50 year period hit. Lessig's proposal offered nothing to the film industry and it imposed a small (but not insignificant) cost. So it went down in flames.
    Tomorrow Tomorrow, we finish!
    The Schedule

Tuesday, April 06, 2004
Tuesday Calendar
    At Columbia's Kernochan Center for Law, Media, and the Arts, Fred von Lohmann, Esq., Electronic Frontier Foundation and Jeffrey Cunard, Esq., Debevoise & Plimpton participate in a program entitled New Business Models: the role of digital rights management, copyright education, and new marketing strategies.
    The annual conference of the Socio-Legal Studies Association will be held April 6-8, 2004 at the School of Law at the University of Glasgow. For information visit

Monday, April 05, 2004
Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
    Introduction The Saturday before last, Legal Theory Bookworm recommended Larry Lessig's new book Free Culture, which can be downloaded for free from Lessig's site (also available in hardcopy from Amazon and Barnes & Noble).
    This is the sixth of eight posts on Lessig's book--a sort of blogospheric book club. There is still plenty of time to catch up; Lessig's book is a great (and fast) read. You are invited to read along, and to send your comments on the book, my posts, or on the comments of other readers.
    Chimera Chapter Eleven is entitled "Chimera," and it refers to the unusual condition where two eggs fuse, resulting in a person with two sets of DNA (so that the DNA from cells found in saliva might differ from the DNA in skin cells). Lessig uses the chimera to introduce the idea that there are two sides to the P2P story. (I am all for analogies, but for the life of me I could not figure out how this one helped use to understand the point.) Here is Lessig's summary:
      The more I work to understand the current struggle over copyright and culture, which I’ve sometimes called unfairly, and sometimes not unfairly enough, “the copyright wars,” the more I think we’re dealing with a chimera. For example, in the battle over the question “What is p2p file sharing?” both sides have it right, and both sides have it wrong. One side says, “File sharing is just like two kids taping each others’ records—the sort of thing we’ve been doing for the last thirty years without any question at all.”That’s true, at least in part.When I tell my best friend to try out a new CD that I’ve bought, but rather than just send the CD, I point him to my p2p server, that is, in all relevant respects, just like what every executive in every recording company no doubt did as a kid: sharing music.
      But the description is also false in part. For when my p2p server is on a p2p network through which anyone can get access to my music, then sure, my friends can get access, but it stretches the meaning of “friends” beyond recognition to say “my ten thousand best friends” can get access. Whether or not sharing my music with my best friend is what “we have always been allowed to do,” we have not always been allowed to share music with “our ten thousand best friends."
      Likewise, when the other side says, “File sharing is just like walking into a Tower Records and taking a CD off the shelf and walking out with it,” that’s true, at least in part. If, after Lyle Lovett (finally) releases a new album, rather than buying it, I go to Kazaa and find a free copy to take, that is very much like stealing a copy from Tower.
      But it is not quite stealing from Tower. After all, when I take a CD from Tower Records, Tower has one less CD to sell. And when I take a CD from Tower Records, I get a bit of plastic and a cover, and something to show on my shelves. (And, while we’re at it, we could also note that when I take a CD from Tower Records, the maximum fine that might be imposed on me, under California law, at least, is $1,000. According to the RIAA, by contrast, if I download a ten-song CD, I’m liable for $1,500,000 in damages.)
    Nonrivalrous consumption again! Lessig then states that we should embrace neither the RIAA nor the KaZaA versions of the story, and that P2P policy should steer a middle course. Lessig is really just writing a promissory note at this point. His actual proposal is not on display in Chapter Eleven.
    Harms Chapter Twelve is titled "Harms." This chapter seems to make a number of small points. One of them is a repeat of the point made earlier in the book that the fair use defense runs into the very high costs of defending against an infringement action. Another point is that the RIAA has become relatively effective at using the legal system to force ISPs to identify customers who "upload" content to P2P systems. But then Lessig comes up with a doozy of a story, one with which I was not familiar. The first part of the story is about how Vivendi-Universal successfully sued and then bought But the second part is more interesting:
      After Vivendi purchased, Vivendi turned around and filed a malpractice lawsuit against the lawyers who had advised it that they had a good faith claim that the service they wanted to offer would be considered legal under copyright law. This lawsuit alleged that it should have been obvious that the courts would find this behavior illegal; therefore, this lawsuit sought to punish any lawyer who had dared to suggest that the law was less restrictive than the labels demanded.
      The clear purpose of this lawsuit (which was settled for an unspecified amount shortly after the story was no longer covered in the press) was to send an unequivocal message to lawyers advising clients in this space: It is not just your clients who might suffer if the content industry directs its guns against them. It is also you. So those of you who believe the law should be less restrictive should realize that such a view of the law will cost you and your firm dearly.
    Wow! And this same strategy of intimidation has been extended to VC firms:
      In April 2003, Universal and EMI brought a lawsuit against Hummer Winblad, the venture capital firm (VC) that had funded Napster at a certain stage of its development, its cofounder ( John Hummer), and general partner (Hank Barry). The claim here, as well, was that the VC should have recognized the right of the content industry to control how the industry should develop. They should be held personally liable for funding a company whose business turned out to be beyond the law. Here again, the aim of the lawsuit is transparent: Any VC now recognizes that if you fund a company whose business is not approved of by the dinosaurs, you are at risk not just in the marketplace, but in the courtroom as well. Your investment buys you not only a company, it also buys you a lawsuit.
    The proceduralist in me wants to point out that this is not just a problem in the arena of intellectual property. The high cost (and uncertainty) of litigation causes inefficiencies in a variety of contexts, from consumer fraud to workers compensation.
    And Lessig's next story is the tragic story of Congress's decision to impose crippling mandatory fees on Internet radio:
      [W]hen Congress considered the phenomenon of Internet radio in 1995, the lobbyists had primed Congress to adopt a different rule for Internet radio than the rule that applies to terrestrial radio.While terrestrial radio does not have to pay our hypothetical Marilyn Monroe when it plays her hypothetical recording of “Happy Birthday” on the air, Internet radio does. Not only is the law not neutral toward Internet radio—the law actually burdens Internet radio more than it burdens terrestrial radio.
      This financial burden is not slight. As Harvard law professor William Fisher estimates, if an Internet radio station distributed adfree popular music to (on average) ten thousand listeners, twenty-four hours a day, the total artist fees that radio station would owe would be over $1 million a year.14 A regular radio station broadcasting the same content would pay no equivalent fee.
    The Cost of the Mismatch Between Copyrights and Copynorms Copyright law says that using P2P is illegal. Copynorms say using P2P is just fine. Lessig's next point concerns the cost of mismatch between norms and law. We might call this the normalization of illegality. Here is how Lessig puts it:
      As my colleague Charlie Nesson told a class at Stanford, each year law schools admit thousands of students who have illegally downloaded music, illegally consumed alcohol and sometimes drugs, illegally worked without paying taxes, illegally driven cars. These are kids for whom behaving illegally is increasingly the norm. And then we, as law professors, are supposed to teach them how to behave ethically—how to say no to bribes, or keep client funds separate, or honor a demand to disclose a document that will mean that your case is over. Generations of Americans—more significantly in some parts of America than in others, but still, everywhere in America today—can’t live their lives both normally and legally, since “normally” entails a certain degree of illegality.
    I think this point is incredibly important. As Lessig says, it puts a choice to us. Either get tought and really enforce the laws or change them.
    This last point of Lessig's (which he examines from several angles at the end of the chapter) is intuitively plausible, and I "buy it." I think that Lessig is right. But as someone who has made this argument myself, I am also aware that it has certain weaknesses. In particular, it is difficult to prove and/or predict the complex causal chains that result when there is a mismatch between norms and laws. Yes, it seems plausible to believe that turning milliions of citizens into criminals would undermine respect for the law, but is this really the case. Perhaps, ordinary citizens are capable of distinguishing between those laws which cohere with social norms and those that don't. So it might be the case that criminalizing P2P has the effect of sensitiizing millions of Americans to the phenomenon of overcriminalization--of using the law to criminialize behavior that is accepted by prevailing social norms. Is it necessarily the case that this is a bad thing? I believe it is, but I don't know how to prove that thesis.
    Tomorrow Tomorrow, we cover Chapters Thirteen and Fourteen.
    The Schedule

New at Law Meme & Ackerman on the Emergency Constitution LTB readers will undoubtedly want to check out the new feature at LawMeme:
    Here at LawMeme, we're proud to be rolling out a new regular feature: New Yale Scholarship Monday. LawMeme is run out of Yale Law School; today we're reaffirming that link. One of the great joys of being in a center of learning is seeing the gleam in the eye of a scholar who's just discovered a marvellous new idea. Some days, walking down the main hallway here, you see nothing but gleam. New Yale Scholarship Monday is our way of helping convey some of that excitement to the rest of our readers -- by conveying to them some of the ideas causing scholars' eyes to gleam. Today, we're opening up a new connection -- a new link in the Intellectual Internet, if you like -- between carefully-edited printed legal scholarship and the faster-paced rough-and-tumble world of weblogs. LawMeme will now be posting abstracts of every piece published in the Yale Law Journal. As issues of the Journal roll off the presses, we'll post summaries of the contents here. Each such story will of course be open to your comments; you're warmly invited to join in discussing the Journal pieces and to offer your thoughts on them. Today, we give you Issue 5 of Volume 113 of the Journal; issues 6, 7, and 8 will arrive over the rest of the semseter.
Here is the link to the report on March 2004 issue of the YLJ. And here is the abstract from one of the articles, Bruce Ackerman's The Emergency Constitution, 113 YALE L.J. 1029 (2004):
    Taking as its starting point the premise that, “Terrorist attacks will be a recurring part of our future,” this Essay sets forth the outline of a constitutional regime which would permit a government to declare a temporary emergency in the wake of a terrorist attack. The author’s concern is to enable the state to effectively take dramatic action in the wake of such an attack to reassure the public, without causing long-term damage to civil rights. (The implicit point of comparison is always The USA PATRIOT Act, which, unlike the temporary emergency regime conceived by the author, contains no expiration date.) In order to create checks and balances in such a regime, the proposed framework relies upon systems of time limits and renewal votes, ascending super-majorities, and empowering the legislative opposition through information and key committee positions. Under such a framework, mass preventive detentions would be permitted during a state of emergency, with innocent detainees entitled to financial compensation after the fact. The Essay also considers what sort of judicial structures would be required to implement such a legal regime.
Kudos to LawMeme!

Monday Calendar
    At Vanderbilt's John Rawls Lecture Series, Kenneth Binmore presents Natural Justice.
    Also at Vanderbilt, Pauline Kim presents The Supreme Court Forecasting Project: Legal and Political Science Approaches to Predicting Supreme Court Decisionmaking.
    And finally at Vanderbilt today, the Law & Business Seminar Series has Paul Spindt, presenting Wanna Dance? How Firms and Underwriters Choose Each Other.
    Today at William and Mary, there is a conference entitled The Death Penalty and International Law.
    At New York University, Kenji Yoshino (Yale, Visiting NYU) is presenting.

Legal Theory Calendar
    Monday, April 5
      At Vanderbilt's John Rawls Lecture Series, Kenneth Binmore presents Natural Justice.
      Also at Vanderbilt, Pauline Kim presents The Supreme Court Forecasting Project: Legal and Political Science Approaches to Predicting Supreme Court Decisionmaking.
      And finally at Vanderbilt today, the Law & Business Seminar Series has Paul Spindt, presenting Wanna Dance? How Firms and Underwriters Choose Each Other.
      Today at William and Mary, there is a conference entitled The Death Penalty and International Law.
      At New York University, Kenji Yoshino (Yale, Visiting NYU) is presenting.
    Tuesday, April 6
      At Columbia's Kernochan Center for Law, Media, and the Arts, Fred von Lohmann, Esq., Electronic Frontier Foundation and Jeffrey Cunard, Esq., Debevoise & Plimpton participate in a program entitled New Business Models: the role of digital rights management, copyright education, and new marketing strategies.
    Wednesday, April 7
      At NYU's legal history series, Sally Gordon, Professor of Law, University of Pennsylvania, presents The Almighty and the Dollar .
      At Australian National University's RSSS, Janet Hope, RSSS, presents Open Source Biotechnology.
    Thursday, April 8
      At Boston University, Jeanne Schroeder (Cardozo) presents Envy and Outsider Trading: The Case of Martha Stewart.
      At Yale's Legal Theory Workshop, Tracy Meares (University of Chicago) presents "When Two or Three Come Together".
      At Florida State, Lynn Baker, University of Texas School of Law, presents Federalism and the Spending Power.
      At Michigan's law and economics series, Alan Schwartz, Yale, presents A Normative Theory of Business Bankruptcy.
      At George Mason, James Swanson, the Heritage Foundation, presents Judicial Speech and the First Amendment.
      At UCLA's tax series, Ken Sokoloff & Eric Zolt, present Taxation & Inequality: Evidence from the Americas.
      At Stanford's Olin Series, Rob Daines (School of Law, New York University) presents Liquidity and Mandatory Disclosure:The Impact of the 1934 Securities Act.
    Friday, April 9
      At the University of Texas, Henry Hansmann, NYU, presents Legal Entities, Asset Partitioning, and the Evolution of Organizations.
      Also at the University of Texas, Julian Bond, NAACP, speaks in the Thurgood Marshall Distinquished Speaker Series on How Affirmative Action Affects Race Relations in this Country:Brown to Now.
      At SUNY Buffalo, Barry Boyer and Lynda Schneekloth, UB, presents Hydropower and Empowerment: Community Participation in Alternative Licensing Proceedings.

Legal Theory Lexicon: Textualism
    Introduction One of the most important topics in legal theory is “legal interpretation,” the theory of derivation of meaning from legal texts. Since I’ve just finished the Roundtable on ‘What Is Legal Interpretation’ at the University of San Diego, I thought that I would do an interpretation topic for this week’s Legal Theory Lexicon Entry.
    Of course, legal interpretation is a very large topic, with several different dimensions and approaches. This post will focus on “textualism,” and provide some introductory ideas about interpretive theory in general. As always, the Legal Theory Lexicon is designed for law students—especially first year law students—with an interest in legal theory.
    Three Levels of Interpretive Theory I find it helpful to separate out three different “levels” at which theories of legal interpretation can operate:
    • Level One: Meta Theories of Interpretation—One kind of theory examines questions like, “What does ‘interpretation’ mean?” and “How is ‘interpretation’ possible?”
    • Level Two: Normative Theories of Interpretation—A second kind of theory addresses the normative question, “What should legal interpretations aim at?” Among the answers to this question are: (a) the morally best reading of the legal text; (b) the intentions of the authors of the legal text, and (c) the plain meaning of the legal text.
    • Level Three: Methodological Theories of Interpretation—A third kind of theory aims to provide practical advice to legal actors (judges, lawyers, administrative officials, and citizens) about the techniques they can use to interpret various types of legal texts.
    Textualism, the subject of this post, can operate at any one of these three levels. That is, textualism could be the view that what legal texts really mean is their plain meaning. Or textualism could be the view that legal interpreters ought to interpret legal texts to have their plain meaning, even if that is not their true or deep meaning according to the best meta theory of interpretation. Or textualism could simply be a practical technique—a method that judges should employ. In this post, the primary focus will be on level two—textualism as a normative theory—with some discussion of level three. Level one, metatheory, gets us into a thorny set of issues that I hope to take up in a subsequent entry in the Legal Theory Lexicon series.
    The Plain Meaning of the Text Let’s begin with a basic question: what do we mean when we say “the plain meaning of the text.” A really good answer to that question would require us to develop a theory of meaning in general, but we will try to avoid that enterprise. At one level, the idea of plain meaning is pretty simple. The plain meaning of a legal text is the meaning that would be understood by regular folks who knew that they were reading a statute (or court decision, etc.).
    But this preliminary formulation is too simple. Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type.
    An Excursion into Speakers Meaning and Sentence Meaning I may be making a mistake, but I think that textualism is illuminated by an excursion into what is sometimes called speech act theory, and in particular, by looking at the concepts of “speaker’s meaning” and “sentence meaning.” So here goes:
      Speaker’s Meaning and Sentence Meaning This idea of plain meaning assumes a distinction that can be formulated in terms of the difference between speaker’s meaning and sentence meaning. The speaker’s meaning of a given utterance (or author’s meaning of a given text) is the meaning that the speaker intended the audience to glean for the utterance (or text). This involves a reflexive set of expectations. What? When I write a text, I understand that the reader know certain things about my having authored the text. When I try to communicate, I take these expectations into account in deciding how to use language to communicate a certain meaning. For example, if I know that my readers know that I know that they know a particular convention, then I can use that convention to communicate to them. (By the way, there are no typos in the prior sentence, all those “knows” are in there for a reason.)
      So when I blog, I know that the readers of blogs assign a particular meaning to the word “post,” and I also know that my readers know that I know that they know this blogospheric convention. So I can use the term “post” to refer to blog entries with confidence that my readers will understand what I mean. On the other hand, if I were writing about blogging for an audience that had never encountered a blog, I would probably need to define the term “post,” before I used it, and if I used the term “post” without defining it, then my audience would likely believe I was referring to mail and not blog entries.
      In other words, when someone speaks or writes for a particular audience on a particular occasion, the speaker or author can take into account what she knows about the audience, what the audience knows about her, but only insofar as the speaker knows that the audience knows what the speaker knows about the audience.
      Speaker’s meaning can be distinguished from sentence meaning. Sentence meaning is the meaning that an utterance has when the audience is unaware of the speaker’s intentions. When we identify sentence meaning, it is as if we were imaging a sot of generic speaker, who uttered the sentence in a generic context. Or putting this a bit differently, sentence meaning is the meaning we would assign sentences when we know that the speaker can’t assume that we are aware of special conventions about meaning.
      Legal Texts, Sentence Meaning & Speaker’s Meaning Legal texts are sometimes intended for a timeless, generic readership. The authors of legislation, for example, know that many different actors (judges, lawyers, administrative officials, and ordinary citizens) will read the statute for an extended period of time in a variety of different conditions. Many of these readers will not be able to afford access to analysis of the legislative history of the statute; they will simply read the statute itself. Of course, they will know that the text they are reading is a statute, and they will therefore have a fair amount of knowledge about the likely intended meaning of various terms and phrases. Moreover, the legislature knows that the readers of statutes will have this knowledge. So it might make sense to assume that the speaker’s meaning that should be assigned to a legal text is a special version of the sentence meaning of the text, e.g. legal sentence meaning.
    The Case for Textualism If we view textualism as a normative theory of interpretation, we need to ask to ask why interpreters of legal texts should aim for interpretations that yield that “plain meaning of the text.” The usual answer to this question is that plain meaning best serves the rule of law values of publicity, predictability, certainty, and stability of the law. One of the important rule of law values is publicity: the law should be accessible to ordinary citizens. Ordinary citizens are likely to interpret statutes to have their plain meaning, because ordinary folks rarely have the training to understand legislative history and even if they did have such training, it would simply be too costly to analyze the legislative history of statutes to determine their meaning.
    Lawyers who counsel citizens and organizations do have the training to analyze legislative history, but can more easily and cheaply discern the plain meaning of a statute than some special meaning that only becomes clear once the legislative history is consulted. Moreover, analysis of legislative history can be quite complex, because some sources of legislative history (e.g. the statements of floor managers) are much more reliable than others (e.g. the statements of opponents of a bill or of the author of a bill). Because of the complexity of statutory interpretation, lawyers are likely to disagree about the meaning of legislative history and to err when predicting how a court will interpret legislative history.
    The same difficulties that afflict lawyers are plague judges. Moreover, most legal research done for federal judges is done by very young lawyers serving as law clerks. This group usually lacks experience in researching legislative history, and their performance is likely to be highly variable. Moreover, because legislative history will frequently contain many conflicting, ambiguous, and vague statements, it is possible that legislative history is easily subject to manipulation, giving judges the opportunity to support their own policy preferences with evidence of the “intentions of the legislature.”
    Textualism as a Practical Methodology Even if textualism does not provide the best ideal theory of legal interpretation, it might be the case that textualism does provide the best practical method of interpretation given the capacities of real world judges and officials. Suppose that we want to interpret statutes to achieve the purposes of the legislature. At first blush, it might seem that the best way to do this would be to have courts and officials employ an intentionalist methodology, combing the legislative record for evidence of legislative intent. But as a practical matter, it may turn out that judges aren’t very good at doing this. So it might be the case that real-world judges are more likely to implement legislative purposes by employing a fairly simple plain-meaning approach as methodology for statutory interpretation. And to the extent that legislators know that judges will employ this approach, legislators could draft with the expectation that judges will use a plain-meaning methodology, which presumably would lead to even closer fit between the plain meaning and the achievement of legislative purpose.
    Conclusion “Textualism” is just one of many approaches to the theory of legal interpretation, but it is an especially good place to begin thinking about issues of interpretation in law. One of the very best ways to become a sophisticated thinker about these issues is to take a really good course in statutory interpretation. Not so long ago, statutory interpretation was considered a dead field, but today there is a tremendous flowering of interesting and exciting scholarship about the interpretation of statutes. I hope that this post has whetted your appetite!

Sunday, April 04, 2004
Legal Theory Calendar
    Tuesday, April 6
      The annual conference of the Socio-Legal Studies Association will be held April 6-8, 2004 at the School of Law at the University of Glasgow. For information visit

Saturday, April 03, 2004
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Profiles, Probabilities, and Stereotypes by Fred Schauer (Harvard, Kennedy School of Government). Schauer is one of the smartest and most interesting legal scholars, and this book is his take on the problem of generality and justice--indeed "Generality and Justice"--was the original title of the book. You can take a virtual book tour on the K-School website, click here. Here is a description:
    This book employs a careful, rigorous, yet lively approach to the timely question of whether we can justly generalize about members of a group on the basis of statistical tendencies of that group. For instance, should a military academy exclude women because, on average, women are more sensitive to hazing than men? Should airlines force all pilots to retire at age sixty, even though most pilots at that age have excellent vision? Can all pit bulls be banned because of the aggressive characteristics of the breed? And, most controversially, should government and law enforcement use racial and ethnic profiling as a tool to fight crime and terrorism? Frederick Schauer strives to analyze and resolve these prickly questions. When the law "thinks like an actuary"--makes decisions about groups based on averages--the public benefit can be enormous. On the other hand, profiling and stereotyping may lead to injustice. And many stereotypes are self-fulfilling, while others are simply spurious. How, then, can we decide which stereotypes are accurate, which are distortions, which can be applied fairly, and which will result in unfair stigmatization? These decisions must rely not only on statistical and empirical accuracy, but also on morality. Even statistically sound generalizations may sometimes have to yield to the demands of justice. But broad judgments are not always or even usually immoral, and we should not always dismiss them because of an instinctive aversion to stereotypes. As Schauer argues, there is good profiling and bad profiling. If we can effectively determine which is which, we stand to gain, not lose, a measure of justice.
And for real video of Schauer on the book, click here. Don't miss the video clip!

Download of the Week This week the Download of the Week is a very interested paper by Adrian Vermeule, entitled The Judiciary Is a They, Not An It: Two Fallacies Of Interpretive Theory. Here is a taste:
    Consider the following arguments about constitutional and statutory interpretation. All of these arguments are widely discussed in the legal literature, especially in the most fashionable recent work on dynamic approaches to interpretation; all of them are widely viewed as at least credible or plausible, whether or not they are ultimately persuasive:
    • Judges should adopt canons of statutory interpretation that require a clear legislative statement ¨C for example, the canon that statutes should be construed to avoid serious constitutional questions ¨C in order to promote beneficial legislative deliberation about constitutional values or important policy questions.
    • Judges should adopt constitutional rules that enforce ¡°due process of lawmaking¡± ¨C for example, requirements of congressional factfinding under statutes that enforce the 14th Amendment ¨C in order to promote a well-functioning legislative process.
    • Judges should adopt textualism because it has a disciplining effect, ex ante, on legislatures and other drafters of legal texts.
    Another suite of arguments surfaces, or (more commonly) remains submerged as an unstated assumption, in debates about interpretation and judicial appointments. Examples include the following claims:
    • Each judge should decide what is, in her judgment, the best approach to constitutional and statutory interpretation, and then adopt it.
    • Each senator who must vote on the confirmation of a judge or justice should decide what is, in her judgment, the best approach to constitutional and statutory interpretation, and then vote to confirm if, and only if, the nominee has adopted that approach.
    In what follows I shall suggest that each of the arguments above, and others like them (in ways I shall specify below), is conceptually muddled.
If you are interested in theories of interpretation, this is a must read! Download it while its hot!

SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. Here are some of the categories of interest to legal theorists:

Friday, April 02, 2004
Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
    Introduction On Saturday, Legal Theory Bookworm recommended Larry Lessig's new book Free Culture, which can be downloaded for free from Lessig's site (also available in hardcopy from Amazon and Barnes & Noble).
    This is the fifth of eight posts on Lessig's book--a sort of blogospheric book club. There is still plenty of time to catch up; Lessig's book is a great (and fast) read. You are invited to read along, and to send your comments on the book, my posts, or on the comments of other readers.
    Property Chapter Ten is titled property, and it begins with the story of Jack Valenti's relentless and successful lobbying effort to give copyright holders property rights that are the equal of property rights in tangible resources. Lessig quotes Valenti, and the quote is worth repeating:
      No matter the lengthy arguments made, no matter the charges and the counter-charges, no matter the tumult and the shouting, reasonable men and women will keep returning to the fundamental issue, the central theme which animates this entire debate: Creative property owners must be accorded the same rights and protection resident in all other property owners in the nation. That is the issue. That is the question. And that is the rostrum on which this entire hearing and the debates to follow must rest.
    Lessig calls this position "extremist," but I would make a different point. Valenti (and many other IP absolutist) simply ignore the crucial differences between information and tangible resources. Consumption of tangible resources is rivalrous; when I drink a glass of Ridge Zinfindel, you cannot drink that same glass of wine. But Consumption of information is nonrivalrous; my copy of an MP3 file does not make yours disappear. With tangible resources, property rights need to be thick and perpetual or the resource will fail to go to its highest and best use. With information, thick and perpetual property rights prevent the resource from going to its highest and best use.
    Lessig's strategy is different. He focuses on history, not economics. He wants to convince us that thick and perpetual property rights in information are outside our tradition--they would be new, radical, a break with history, an innovation, outside the norm, unusual, unprecedented. The first piece of evidence that Lessig offers is the Constitution:
      In the clause granting Congress the power to create ?creative property,? the Constitution requires that after a ?limited time,? Congress take back the rights that it has granted and set the ?creative property? free to the public domain. Yet when Congress does this, when the expiration of a copyright term ?takes? your copyright and turns it over to the public domain, Congress does not have any obligation to pay ?just compensation? for this ?taking.?
    So, Lessig concludes, Valenti's call for thick and perpetual property rights in information goes against our constitutional tradition:
      The Constitution thus on its face states that these two forms of property are not to be accorded the same rights. They are plainly to be treated differently. Valenti is therefore not just asking for a change in our tradition when he argues that creative-property owners should be accorded the same rights as every other property-right owner. He is effectively arguing for a change in our Constitution itself.
    Four Modalities of Regulation At this point, Lessig shifts gears and pulls out a model. There are, he says, four modalities of regulation:
      Law--the constitution, statutes, regulations, and common law.
      Market--the operation of property and pricing.
      Norms--social attitudes enforced through informal sanctions and rewards.
      Architecture--the software or hardware that determines what is technologically possible (speed pumps and the layered nature of the Internet are both "architecture" in this sense.
    And of these four, law play a special role to play:
      While these four modalities are analytically independent, law has a special role in affecting the three.3 The law, in other words, sometimes operates to increase or decrease the constraint of a particular modality. Thus, the law might be used to increase taxes on gasoline, so as to increase the incentives to drive more slowly. The law might be used to mandate more speed bumps, so as to increase the difficulty of driving rapidly. The law might be used to fund ads that stigmatize reckless driving. Or the law might be used to require that other laws be more strict?a federal requirement that states decrease the speed limit, example?so as to decrease the attractiveness of fast driving.
    The Internet Changes the Modalities Lessig then deploys the model to explain the how the Internet has affected the way law, market, architecture, and norms interact to regulate copying:
      The law limits the ability to copy and share content, by imposing penalties on those who copy and share content. Those penalties are reinforced by technologies that make it hard to copy and share content (architecture) and expensive to copy and share content (market). Finally, those penalties are mitigated by norms we all recognize?kids, for example, taping other kids? records. These uses of copyrighted material may well be infringement, but the norms of our society (before the Internet, at least) had no problem with this form of infringement.
    And Lessig argues that pre-Internet the four modalities were is some sort of rough balance, but the Internet upset that balance:
      Enter the Internet, or, more precisely, technologies such as MP3s and p2p sharing. Now the constraint of architecture changes dramatically, as does the constraint of the market. And as both the market and architecture relax the regulation of copyright, norms pile on. The happy balance (for the warriors, at least) of life before the Internet becomes an effective state of anarchy after the Internet.
    So it is not surprising that the content industries argued that all four modalites should be brought to bear to reinforce copyright in response to the Internet:
      In response to the changes the Internet had effected, the White Paper argued (1) Congress should strengthen intellectual property law, (2) businesses should adopt innovative marketing techniques, (3) technologists should push to develop code to protect copyrighted material, and (4) educators should educate kids to better protect copyright.
    At this point in the Chapter, Lessig makes a transition, riffing from the unintended consequences of DDT for the physical environment to the point that changes made to protect copyright from P2P might have unintended consequences for the ecology of creativity (my phrase, not Lessig's):
      No doubt the technology of the Internet has had a dramatic effect on the ability of copyright owners to protect their content. But there should also be little doubt that when you add together the changes in copyright law over time, plus the change in technology that the Internet is undergoing just now, the net effect of these changes will not be only that copyrighted work is effectively protected. Also, and generally missed, the net effect of this massive increase in protection will be devastating to the environment for creativity.
    Back to the Constitution I must admit that the next move took me by surprise. Lessig darts back to the Constitution and quotes what he calls the Progress Clause:
      Congress has the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
    The early history of the clause is illuminating. Terms were short by today's standards (14 years, plus one renewal term of an additional 14 years if the author was living). Most works weren't copyrighted and most copyrights were not renewed. And then . . .
      In the first hundred years of the Republic, the term of copyright was changed once. In 1831, the term was increased from a maximum of 28 years to a maximum of 42 by increasing the initial term of copyright from 14 years to 28 years. In the next fifty years of the Republic, the term increased once again. In 1909, Congress extended the renewal term of 14 years to 28 years, setting a maximum term of 56 years.
      Then, beginning in 1962, Congress started a practice that has defined copyright law since. Eleven times in the last forty years, Congress has extended the terms of existing copyrights; twice in those forty years, Congress extended the term of future copyrights. Initially, the extensions of existing copyrights were short, a mere one to two years. In 1976, Congress extended all existing copyrights by nineteen years. And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress extended the term of existing and future copyrights by twenty years.
    Not only are terms longer, but the scope of protection is much thicker (or broader):
      While the contours of copyright today are extremely hard to describe simply, in general terms, the right covers practically any creative work that is reduced to a tangible form. It covers music as well as architecture, drama as well as computer programs. It gives the copyright owner of that creative work not only the exclusive right to ?publish? the work, but also the exclusive right of control over any ?copies? of that work. And most significant for our purposes here, the right gives the copyright owner control over not only his or her particular work, but also any ?derivative work? that might grow out of the original work. In this way, the right covers more creative work, protects the creative work more broadly, and protects works that are based in a significant way on the initial creative work.
    Longer terms and thicker protections--Lessig's point is that the copyright law of today represents a massive increase in protection as compared to the first copyright law adopted by Congress.
    Back to Architecture And then Lessig flips back over to the relationship between law and architecture. And I think that this next point is very important. Lessig argues that the architecture of the Internet (or digitalization, because the same effect would have occurred without the Internet) is to change the relationship between use and copying. Pre-internet use did not equal copying; post-internet, due does equal copying:
      Before the Internet, if you purchased a book and read it ten times, there would be no plausible copyright-related argument that the copyright owner could make to control that use of her book. Copyright law would have nothing to say about whether you read the book once, ten times, or every night before you went to bed. None of those instances of use—reading— could be regulated by copyright law because none of those uses produceda copy.
      But the same book as an e-book is effectively governed by a different set of rules.Now if the copyright owner says you may read the book only once or only once a month, then copyright law would aid the copyright owner in exercising this degree of control, because of the accidental feature of copyright law that triggers its application upon there being a copy. Now if you read the book ten times and the license says you may read it only five times, then whenever you read the book (or any portion of it) beyond the fifth time, you are making a copy of the book contrary to the copyright owner’s wish.
    If you are reading this blog, you are reading a new copy. If you save the blog to disk, you make another copy. If you open that copy, your computer creates yet another copy. Digitalization multiplies copies. Everytime a digital copy is used, another digital copy (or two or three) is produced.
    And digitalization creates the possibility that the creators of digital works can build control in the work itself. Lessig gives the frightening example of the permissions that can be built into an Adobe E-book:
      the Adobe eBook Reader calls these controls “permissions”—as if the publisher has the power to control how you use these works For works under copyright, the copyright owner certainly does have the power—up to the limits of the copyright law. But for work not under copyright, there is no such copyright power. When my e-book of Middlemarch says I have the permission to copy only ten text selections into the memory every ten days, what that really means is that the eBook Reader has enabled the publisher to control how I use the book on my computer, far beyond the control that the law would enable.
      The control comes instead from the code—from the technology within which the e-book “lives.” Though the e-book says that these are permissions, they are not the sort of “permissions” that most of us deal with.When a teenager gets “permission” to stay out till midnight, she knows (unless she’s Cinderella) that she can stay out till 2 A.M., but will suffer a punishment if she’s caught. But when the Adobe eBook Reader says I have the permission to make ten copies of the text into the computer’s memory, that means that after I’ve made ten copies, the computer will not make any more. The same with the printing restrictions: After ten pages, the eBook Reader will not print any more pages. It’s the same with the silly restriction that says that you can’t use the Read Aloud button to read my book aloud—it’s not that the company will sue you if you do; instead, if you push the Read Aloud button with my book, the machine simply won’t read aloud.
    Encryption and digital rights management plus the anti-circumvention provisions of the Digital Millenium Copyright Act give the proprietors of digital works the power to control fair use--to make fair use imposible without the deployment of illegal circumvention technologies. This point, while familiar to copyright scholars, has not yet sunk in with the public. Lessig does a fabulous job of making this point vivid and real. Bravo!
    Lessig then goes on a riff about media con (the concentration of media ownership, which leads him to the BIG POINT of Chapter Ten: Never in our history have fewer had a legal right to control more of the development of our culture than now. In other words, the architectural and legal changes made in response to P2P and the threat posed by digitalization to copyright are like DDT in the ecology of creativity. DRM plus the DMCA plus media con threaten the vibrancy of our cutlure.
    Well, as Lessig himself says, Chapter Ten was long. I'm going to think over the weekend, and we will get back together on Monday. For now, all I can say is that I haven't done this Chapter justice. It is a tour de force. One of the most effective pieces of legal writing I have read.
    Monday The book club will resume on Monday with Chapters Eleven and Twelve.
    The Schedule

Friday Calendar
    At the University of San Diego, the Institute for Law and Philosophy is hosting a Roundtable on What Is Legal Interpretation. The participants include:
      Larry Alexander, University of San Diego, School of Law, Laurie Claus, University of San Diego, School of Law, Dean Stanley Fish--University of Illinois at Chicago, Dagfinn Follesdal--Stanford University, Department of Philosophy, Elizabeth Garrett, University of Southern California Law School, Jeffrey Goldsworthy, Monash University School of Law, Australia, Kent Greenawalt, Columbia University School of Law, Mark Greenberg, Princeton University Department of Philosophy, Steven Knapp, Provost, The Johns Hopkins University, Matthew McCubbins, University of California, San Diego, Political Science Department, David McGowan, University of Minnesota, School of Law, Miranda McGown, University of Minnesota, School of Law, Walter Benn Michaels, University of Illinois, Chicago, Department of English, Michael Moore, University of Illinois College of Law, Dennis Patterson, Rutgers school of Law, Camden, Sai Prakash, University of San Diego, School of Law, Michael Ramsey, University of San Diego, School of Law, Michael Rappaport, University of San Diego, School of Law, Dan Rodrguez, University of San Diego, School of Law, Connie Rosati, University of California at Davis, Department of Philosophy, Frederick Schauer, Harvard University, JFK School of Government, Maimon Schwarzschild, University of San Diego, School of Law, Scott Shapiro, Yale Law School, Walter Sinnott-Armstrong, Dartmouth College, Department of Philosophy, Steve Smith, University of San Diego, School of Law, Adrian Vermuele, University of Chicago School of Law, Keith Whittington, Princeton University, Department of Politics, Matt Zwolinksi, University of San Diego, Department of Philosophy
    Larry Alexander has outdone himself! I am looking forward to this exciting event.
    And, it is a very good day for legal theory events, as John Gardner's visit to the University of Texas continues today with the Leon Green '15 Lecture in Jurisprudence.

Thursday, April 01, 2004
Raz on Exclusive Naturalism Joseph Raz (Oxford) has posted Exclusive Naturalism (forthcoming Oxford Journal of Legal Studies) on SSRN. Here is the abstract:
    Concepts, as objects of philosophical study, as the target of conceptual analysis or elucidation, are a philosophical creation. 'Law' is a concept, and so it follows directly, that law is a philosophical creation. All theories aim to be successful, or at least to be more successful than their rivals. A theory of law, then, must be philosophically creative if it is fulfill its aim. To understand what law is, we must understand what it would be for for a theory of law to be philosophically creative. Some years back no one thought that it was part of the concept of law that law had no moral authority; hence, a successful theory of law was, of necessity, one that was premised on the assumption that law creates no obligation. Today, however, many or most accept that law does not obligate, and hence a theory based on that premise is no longer creative, or if still creative, not as creative as rival theories which do not incorporate the conventional assumption. Instead, let us assume that the contrary--or rather the contrapositive--of the now-conventional assumption about obligation holds. Given this new assumption, it can be argued that it is built into the concept of law that law consists of all and only those obligations that oblige morally. This view, although once old hat, is quite out of fashion, or unconventional. That is, a view based on the new assumption is creative, or at least more creative than more conventional rival views. It follows, therefore, that a successful theory of law is a theory that excludes all norms that are not morally obligatory from the realm of legal norms. This view can be called 'exclusive naturalism.'

Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
    Introduction On Saturday, Legal Theory Bookworm recommended Larry Lessig's new book Free Culture, which can be downloaded for free from Lessig's site (also available in hardcopy from Amazon and Barnes & Noble).
    This is the fourth of eight posts on Lessig's book--a sort of blogospheric book club. There is still plenty of time to catch up; Lessig's book is a great (and fast) read. You are invited to read along, and to send your comments on the book, my posts, or on the comments of other readers.
    Founders Chapter Six tells a historical story about the emergence of what Lessig calls the "Progress Clause," the clause in the United States Constitution that grants Congress legislative power over copyright and patent. This part of the story will be very familiar to copyright scholars and lawyers, but Lessig's retelling is concise and informative--from the royal printing monopolies through the Statute of Anne to the Lessig's climax, the decision in Donaldson v. Beckett, which effectively abolished perpetual copyright terms:
      “The public domain.” Before the case of Donaldson v. Beckett, there was no clear idea of a public domain in England. Before 1774, there was a strong argument that common law copyrights were perpetual. After 1774, the public domain was born. For the first time in Anglo-American history, the legal control over creative works expired, and the greatest works in English history—including those of Shakespeare, Bacon, Milton, Johnson, and Bunyan—were free of legal restraint.
    And what was the effect:
      Culture in England was thereafter free. Not in the sense that copyrights would not be respected, for of course, for a limited time after a work was published, the bookseller had an exclusive right to control the publication of that book. And not in the sense that books could be stolen, for even after a copyright expired, you still had to buy the book from someone. But free in the sense that the culture and its growth would no longer be controlled by a small group of publishers. As every free market does, this free market of free culture would grow as the consumers and producers chose. English culture would develop as the many English readers chose to let it develop—chose in the books they bought and wrote; chose in the memes they repeated and endorsed. Chose in a competitive context, not a context in which the choices about what culture is available to people and how they get access to it are made by the few despite the wishes of the many.
    I was a bit suprised by the lack of attention to the founding era in Chapter Six. But maybe that is still ahead of us?.
    Recorders Chapter Seven is titled "Recorders." It begins with the story of Jon Else's attempt to get clearance for 4 1/2 seconds of a Simpson's episode that appeared on a television set in one scene of a documentary about the making of a Ring Cycle in San Francisco. In the end, Else was told that it would cost $10,000 to use the four seconds. Of course, these four seconds were undoubtedly fair use. But if Else were sued, it would cost even more than $10,000 to successfully assert the fair use defense. So Else had to use special effects to replace the Simpson's in the 4 1/2 seconds of his documentary.
    Well that story got my juices flowing! As I was thinking about the story, it occurred to me that there is a very good case for fee-shifting for successful fair-use defenses--perhaps with a bonus to give adequate incentives for contingency fair-use defense representation. Else had another option, of course--a declaratory relief action. This has a nifty advantage over asserting the fair use defense from a defensive posture. If you lose the declaratory relief action, then the party that is unreasonably contesting fair use cannot recover anything against you--because you haven't yet copied.
    The conclusion to the Chapter makes it clear what the point of the Else story is:
      In theory, fair use means you need no permission. The theory therefore supports free culture and insulates against a permission culture. But in practice, fair use functions very differently. The fuzzy lines of the law, tied to the extraordinary liability if lines are crossed, means that the effective fair use for many types of creators is slight. The law has the right aim; practice has defeated the aim.
    Transformers Chapter Eight is titled "Transformers." It tells the story of Alex Arben's success in getting clearances for many, many Clint Eastwood clips for a retrospective DVD on Eastwood's career. It took a huge effort, but not only was Arben successful in getting permission, he also was able to convince all the other actors who appeared in the clips to take the nominal day-rate for their performances. Does this story contradict the lesson drawn in the previous chapter?
      Alben worked for a big company. His company was backed by some of the richest investors in the world. He therefore had authority and access that the average Web designer would not have. So if it took him a year, how long would it take someone else? And how much creativity is never made just because the costs of clearing the rights are so high?
    Lessig's rhetorical question underemphasizes his point. The cost of clearances and permissions makes compilation works based on films virtually impossible for almost everyone.
    Collectors Chapter Nine is titled "Collectors." It begins with the story of the Internet Archive and its famous Way Back Machine. What a tremendous resource! And what a contrast with television, where no comparable archive exists and access to most of the history of television is virtually impossible to obtain. My friend and fomer colleague Sheila Kuehl (now a California State Senator) played Zelda on the Dobie Gillis Show. I remember how fortunte Sheila felt that she had been able to obtain copies of two episodes of the show, because in many cases even television actors and directors have no means of obtaining copies of their own work--if it was done before the VCR.
    The point of the chapter is that a tremendous public good could be created if works are allowed to into the public domain:
      Perhaps the single most important feature of the digital revolution is that for the first time since the Library of Alexandria, it is feasible to imagine constructing archives that hold all culture produced or distributed publicly.Technology makes it possible to imagine an archive of all books published, and increasingly makes it possible to imagine an archive of all moving images and sound.
    Reflections Today's three chapters were light--a good thing since I'm still preparing for the Interpretation Roundtable here at USD tomorrow. Reflecting on the three chapters together, it strikes me that transaction costs and litigation costs play a hugely important role in Lessig's argument. Strong entitlements for copyright owners plus high transaction costs create tremendous inefficiencies!
    Tomorrow I will continue tomorrow with Chapter Ten. The full schedule of posts is set out below.
    The Schedule

Thursday Calendar

Shaw on the New Constitutional Treaty for the EU Jo Shaw (University of Manchester, School of Law) has posted Flexibility in a 'Reorganised' and 'Simplified' Treaty - A Practical Proposal on SSRN. Here is the abstract:
    This paper considers whether and under what conditions certain aspects of flexibility should or should not be included in the New Constitutional Treaty (NCT). It divides views about flexibility in the EU along two main axes: flexibility as a pragmatic versus a political issue of principle, and flexibility as a desirable versus an undesirable element of the integration system. Although the principle of flexibility in a constitutional text seems to conflict with the simplicity, clarity and unity of a constitution, I argue that it is possible to welcome flexible arrangements based on tolerance of diversity into the EU legal system for reasons of both pragmatism and principle. The paper's discussion on flexibility is limited to the instrument of enhanced co-operation, the existing types of opt-outs and the use of international agreements by the Member States outside the institutional framework of the EU. It concludes that the enhanced co-operation should be included in Part One and Part Two of the NCT, with opt-out arrangements reflecting case by case political contingencies in Part Two only.

Scott & Stephan on Self-Enforcing International Agreements Robert E. Scott and Paul B. Stephan III (University of Virginia School of Law and University of Virginia School of Law) have posted Self-Enforcing International Agreements and the Limits of Coercion on SSRN. Here is the abstract:
    International law provides an ideal context for studying the effects of freedom from coercion on cooperative behavior. Framers of international agreements, no less than the authors of private contracts, can choose between self enforcement and coercive third-party mechanisms to induce compliance with the commitments they make. Studies of individual contracting provide some evidence that coercive sanctions may crowd out self enforcement, implying that too great a propensity by external actors to intervene in the contractual relationship may produce welfare losses. We explore the possibility that too much coercive third-party enforcement similarly can reduce the value of international agreements. We argue that, in spite of the obvious differences between state and individual decisionmaking, enough similarities exist to make the inquiry worthwhile. Using analytic moves worked out in the context of private contracts, we make two general claims about international agreements, one conventional and one controversial. First, we maintain that one usefully can evaluate efforts to frame and implement international agreements in terms of optimal enforcement structure. Choosing from a broad range of normative criteria, one still can distinguish between better and worse enforcement strategies. Second, we argue that the optimal enforcement structure for any particular international agreement will depend on both the goals of the agreement and the context in which it designed and implemented. Because these goals and contexts are diverse, the set of optimal enforcement structures is heterogenous. Some optimal enforcement structures will depend largely on self enforcement, while others will not. Central to our claim is an appreciation of the interaction of self enforcement and third-party coercion including binding arbitration, use of international courts, and enforcement by domestic actors. We maintain that in a far from trivial number of instances subject to international agreement, self enforcement and coercive enforcement may be rivalrous and the optimal enforcement structure would preclude or limit coercive enforcement. In particular, we argue that good theoretical arguments buttress the general tendency of domestic courts not to extend their coercive powers to implement an international agreement without a clear signal from the framers of the agreement that this coercion is desired.

Philipson and Dai on Patent Competition Tomas Philipson and Carolanne Dai (University of Chicago and University of Chicago) have posted Between- vs. Within-Patent Competition (Regulation, Vol. 26, No. 3, pp. 42-48, Fall 2003) on SSRN. Here is the abstract:
    A patent only protects an innovator from others producing the same product; it does not provide protection from others producing better products under new patents. Between-patent competition may be as important a limit on innovative returns as within-patent competition, particularly in high-tech fields such as the telecommunications, biotechnology, and pharmaceutical industries. Given the importance of both within- and between-patent competition, our study attempts to estimate their relative impacts on innovative returns for the U.S. pharmaceutical industry.

Wasserman on Section 1983 Procedure Howard M. Wasserman (Florida International University College of Law) has posted Civil Rights Plaintiffs and Joe Doe Defendants: A Study in Section 1983 Procedure (Cardozo Law Review, Vol. 25, No. 793, 2003) on SSRN. Here is the abstract:
    In this article, Professor Wasserman addresses the problems encountered by Section 1983 plaintiffs who do not know the identities of the officers who violated their constitutional rights, file a Complaint naming Officers John Doe 1-3 as defendants, learn the officers' names in discovery after the statute of limitations has expired, and are time-barred from filing an Amended Complaint properly identifying those officers. Courts do not permit the amended pleading to "relate back" to the original time of filing, because the plaintiffs' lack of knowledge of the officers' names is not a "mistake concerning the identity of the proper party" for purposes of Fed. R. Civ. P. 15(c)(3). This interpretation and application of the rules is improperly restrictive, having a uniquely disparate impact on the substantive interests of civil rights plaintiffs and the substantive purposes of Section 1983. This is due largely to the Byzantine Section 1983 liability scheme, under which the officers, rather than the government, are the primary (and often sole) proper and liable defendants. Concluding that procedure should not unduly hamper the vindication of substantive rights in this manner, Professor Wasserman considers four changes that might resolve the dilemma. The first is to simply require the plaintiff to commence the action earlier, with more time to use to discovery to learn the defendants' names and amend the pleading before the limitations period has expired. The second is to alter substantive Section 1983 and Bivens law to establish governmental respondeat superior liability. This obviates the need to identify and sue the individual officers, because the government entity is the primary responsible defendant. The third solution is a reinterpretation or amendment of Rule 15(c)(3), permitting relation back where there has been a mistake or lack of knowledge or ignorance concerning the identity of the proper party. The final, and most important suggestion, is the creation of a limited pre-filing discovery procedure modeled on Fed. R. Civ. P. 27, through which a Section 1983 plaintiff could, prior to commencing the lawsuit by filing a Complaint, formally depose a government entity in order to learn the names of the officers whose conduct violated her rights, which officers then could be sued by name in a timely filed Complaint.

McNamar on New Technology & Enron R.T. McNamar (Cato Institute) has posted New Technology Can Help Avoid A Second Enron (Regulation, Vol. 26, No. 3, pp. 62-67, Fall 2003) on SSRN. Here is the abstract:
    If Enron had filed in XBRL, its reported revenues, cash flows from operations, and profits would have been compared against industry standards. Its growth rate and the growth rate of its purported cash flows from operations would have been so far above industry norms that it would have been flagged for an SEC staff review. It looked too good to be true, and an examination by the SEC’s Corporate Finance Department would have showed that it was too good to be true.

Willis on Corporate Reporting in the Information Age Mike Willis (PricewaterhouseCoopers LLP) has posted Corporate Reporting Enters the Information Age (Regulation, Vol. 26, No. 3, pp. 56-60, Fall 2003) on SSRN. Here is the abstract:
    In the age of Sarbanes-Oxley, executives in particular have a critical responsibility: ensuring that communication of operational results also means conveying those results through efficient delivery in an interactive medium such as the Internet. The means of reducing complexity and promoting more straightforward information-sharing among disparate types and brands of business reporting and analytical software lies in the creation of a standard that all business software can understand and use. That standard has already been created, and is moving into the corporate reporting supply chain more quickly than you might think. Welcome to the age of Extensible Business Reporting Language (XBRL).

Conference Announcement: The Second Amendment
    (Those interested in attending may request a registration form by e-mailing their name and fax number or postal mailing address to: "The Second Amendment and the Future of Gun Regulation: Historical, Legal, Policy and Cultural Perspectives" Tuesday, April 13, 2004 New York City A conference jointly organized by the Fordham University Law Review, Fordham University School of Law, & The Second Amendment Research Center at The John Glenn Institute for Public Service and Public Policy, The Ohio State University SCHEDULE AND TOPICS Tuesday, April 13, 2004 8:30 CHECK IN BEGINS 9:00 - 9:20 WELCOME & INTRODUCTORY REMARKS 9:30 - 11:00 SESSION I, "Historical Perspectives" Chair: Carol Berkin, CUNY Baruch Presenter: Saul Cornell, The Ohio State University Presenter: Nathan DeDino, The Ohio State University Commentator: David T. Konig, Washington University in St. Louis Commentator: James A. Henretta, University of Maryland 11:00 - 11:15 BREAK 11:15 - 12:45 SESSION II, "Legal Perspectives" Chair: Robert J. Kaczorowski, Fordham University School of Law Presenter: Michael C. Dorf, Columbia University Commentator: Calvin R. Massey, University of California Hastings Commentator: Raymond T. Diamond, Tulane University Law School 12:45 - 2:00 LUNCH 2:00 - 3:30 SESSION III, "Public Policy Perspectives" Chair: Jan Dizard, Amherst College Presenter: Philip J. Cook, Duke University Presenter: Jens Ludwig, Georgetown University Commentator: John J. Donohue, Stanford University Commentator: Deborah Azrael, Harvard University 3:30 - 3:45 BREAK 3:45 - 5:15 SESSION IV, "Cultural Perspectives" Chair: Robert J. Spitzer, SUNY Cortland Presenter: Bernard E. Harcourt, University of Chicago Commentator: Kristin Goss, Georgetown University Commentator: Deborah Homsher, Cornell University 5:15 - 6:00 COCKTAIL HOUR 6:00 - 7:00 KEYNOTE SPEECH Speaker: Erwin Chemerinsky, University of Southern California Registration deadline: April 2, 2004 Conference fee: $100.00 Conference papers will be published by Fordham Law Review in Fall 2004. This conference has been approved for CLE credit by the Ohio State Commission on CLE.

Call for Papers: Bull Moose Republicans
    "Defending the rule of law and promoting free trade are two of the foundational values of modern American conservatism. President Bush's immigration proposal has brought these two principles to the fore of public discussion within the GOP as faithful conservative loyalists debate the practical application of these two shared values as they apply to our country's present immigration situation. Authors are invited to interpret these two values - rule of law and free trade - philosophically and/or historically, and apply them in defense of or opposition to the specific immigration policy proposal of the Bush administration." More information is available at While the analysis does not need to be explicitly legal, it certainly can be, and as two of the editors are law students, that perspective on the issue will certainly be appreciated.